No. 14IN THE
Supreme Court of the United States
ALEJANDRO ENRIQUE RAMIREZ UMAÑA,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
DANIELLE SPINELLI
Counsel of Record
SONYA L. LEBSACK
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave., NW
Washington, DC 20006
(202) 663-6000
MALCOLM RAY HUNTER, JR.
[email protected]
P.O. Box 3018
BROOK HOPKINS
Chapel Hill, NC 27515
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
VINCENT J. BRUNKOW
ZANDRA L. LOPEZ
JANET C. TUNG
FEDERAL DEFENDERS OF
SAN DIEGO, INC.
225 Broadway, Suite 900
San Diego, CA 92101
CAPITAL CASE
QUESTION PRESENTED
Whether, at capital sentencing, the government
may seek to prove the aggravating factor that the defendant committed previous unadjudicated murders
through hearsay statements to police of other suspects
in those murders, without permitting the defendant to
confront or cross-examine his accusers.
(i)
TABLE OF CONTENTS
Page
QUESTION PRESENTED ............................................... i
TABLE OF AUTHORITIES ..........................................vi
OPINIONS BELOW .......................................................... 1
JURISDICTION ................................................................. 2
CONSTITUTIONAL AND STATUTORY
PROVISIONS .............................................................. 2
INTRODUCTION .............................................................. 2
STATEMENT ..................................................................... 5
A. The Federal Death Penalty Act.......................... 5
B. Umaña’s Arrest And Indictment ........................ 6
C. The District Court’s In Limine Ruling .............. 7
D. Umaña’s Conviction And Sentencing................. 8
E. The Court Of Appeals Decision ........................ 12
REASONS FOR GRANTING THE PETITION ...........14
I.
THE DECISION BELOW DEEPENS THE
LONGSTANDING SPLIT OF AUTHORITY ON
WHETHER AND TO WHAT EXTENT THE
CONFRONTATION CLAUSE APPLIES IN CAPITAL SENTENCING PROCEEDINGS ............................ 14
A. Courts That Have Held That The Confrontation Clause Applies At Capital
Sentencing ............................................................ 16
(iii)
iv
TABLE OF CONTENTS—Continued
Page
B. Courts That Have Held That The Confrontation Clause Does Not Apply At
The Selection Phase But Held Or Suggested That It Would Apply At The
Eligibility Phase .................................................. 18
C. Courts That Have Held Or Implied
That The Confrontation Clause Does
Not Apply At All In Capital Sentencing Proceedings ................................................... 20
II. THE DECISION BELOW IS WRONG ............................ 22
A. The Confrontation Clause Was Intended To Prevent Defendants From Being
Put To Death Based On Hearsay Accusations ................................................................... 22
B. This Court’s Jury-Trial Decisions
Demonstrate That The Confrontation
Right Applies To Aggravating Factors
Found At The Selection Phase Of Capital Sentencing ...................................................... 26
III. THIS CASE PRESENTS AN ISSUE OF EXCEPTIONAL IMPORTANCE AND IS AN EXCELLENT VEHICLE FOR RESOLVING IT .................. 31
CONCLUSION ................................................................. 34
APPENDIX A: Opinion of the United States
Court of Appeals for the Fourth Circuit,
dated April 23, 2014 ................................................... 1a
APPENDIX B: Order of the United States
District Court for the Western District of
North Carolina, dated April 19, 2010 .................... 85a
v
TABLE OF CONTENTS—Continued
Page
APPENDIX C: Amended Order of the United
States Court of Appeals for the Fourth
Circuit denying rehearing en banc, dated
August 12, 2014 ....................................................... 113a
APPENDIX D: Order of the United States
Court of Appeals for the Fourth Circuit
denying rehearing en banc, dated June 27,
2014 ........................................................................... 125a
APPENDIX E: Relevant Statutory Provisions
18 U.S.C. § 3591 ...................................................... 127a
18 U.S.C. § 3592 ...................................................... 129a
18 U.S.C. § 3593 ...................................................... 138a
vi
TABLE OF AUTHORITIES
CASES
Page(s)
Alleyne v. United States, 133 S. Ct. 2151 (2013) ................... 29
Apprendi v. New Jersey, 530 U.S. 466 (2000) ................ 24, 28
Atkins v. Virginia, 536 U.S. 304 (2002) .......................... 32
Blakely v. Washington, 542 U.S. 296
(2004) ...................................................... 4, 17, 19, 31, 32
Bruton v. United States, 391 U.S. 123 (1968) .................... 26
Crawford v. Washington, 541 U.S. 36 (2004) ............ passim
Furman v. Georgia, 408 U.S. 238 (1972) .......................... 4
Gardner v. Florida, 430 U.S. 349 (1977) .................... 4, 27
Grandison v. State, 670 A.2d 398 (Md. 1995) ................. 18
Gregg v. Georgia, 428 U.S. 153 (1976) ............................. 27
Lockett v. Ohio, 438 U.S. 586 (1978) .......................... 27, 28
Mempa v. Ray, 389 U.S. 128 (1967) ................................ 23
Muhammad
v.
Secretary,
Florida
Department of Corrections, 733 F.3d
1065 (11th Cir. 2013)................................................... 16
Ohio v. Roberts, 448 U.S. 56 (1980) ................................. 25
People v. Banks, 934 N.E.2d 435 (Ill. 2010) ................... 20
People v. Ramey, 604 N.E.2d 275 (Ill. 1992).................. 20
Pitchford v. State, 45 So. 3d 216 (Miss. 2010) .................. 18
Pointer v. Texas, 380 U.S. 400 (1965) ............................. 25
Proffitt v. Wainwright, 685 F.2d 1227 (11th
Cir. 1982), modified, 706 F.2d 311 (11th
Cir. 1983) ................................................................ 15, 16
vii
TABLE OF AUTHORITIES—Continued
Page(s)
Ring v. Arizona, 536 U.S. 584 (2002) ................ 4, 17, 28, 29
Rodgers v. State, 948 So. 2d 655 (Fla. 2006) ................... 17
Russeau v. State, 171 S.W.3d 871 (Tex.
Crim. App. 2005) ......................................................... 18
State v. Bell, 603 S.E.2d 93 (N.C. 2004) .......................... 18
State v. Berget, 826 N.W.2d 1 (S.D. 2013) ...................... 20
State v. Carr, 331 P.3d 544 (Kan. 2014),
petition for cert. filed, No. 14-450 (U.S.
Oct. 16, 2014) ................................................... 14, 18, 32
State v. Dunlap, 313 P.3d 1 (Idaho 2013),
cert. denied, 135 S. Ct. 355 (U.S. 2014) .................... 21
State v. Johnson, 284 S.W.3d 561 (Mo. 2009) .................. 20
State v. McGill, 140 P.3d 930 (Ariz. 2006) ...................... 20
Strickland v. Washington, 466 U.S. 668
(1984) ............................................................................ 23
Summers v. State, 148 P.3d 778 (Nev. 2006) .................... 21
Szabo v. Walls, 313 F.3d 392 (7th Cir. 2002) ...............15, 20
Tennessee v. Street, 471 U.S. 409 (1985)......................... 26
United States v. Bodkins, 2005 WL
1118158 (W.D. Va. 2005) ............................................ 19
United States v. Booker, 543 U.S. 220 (2005) ..............17, 29
United States v. Concepcion Sablan, 555 F.
Supp. 2d 1205 (D. Colo. 2007).................................... 17
United States v. Fields, 483 F.3d 313 (5th
Cir. 2007) ..................................................... 14, 15, 18, 19
viii
TABLE OF AUTHORITIES—Continued
Page(s)
United States v. Johnson, 378 F. Supp. 2d
1051 (N.D. Iowa 2005) ................................................ 19
United States v. Jordan, 357 F. Supp. 2d
889 (E.D. Va. 2005) ................................................. 6, 19
United States v. Mills, 446 F. Supp. 2d
1115 (C.D. Cal. 2006) ............................................ 14, 17
United States v. Stitt, 760 F. Supp. 2d 570
(E.D. Va. 2010) ............................................................ 17
Walton v. Arizona, 497 U.S. 639 (1990).......................... 28
White v. Illinois, 502 U.S. 346 (1992).............................. 26
Williams v. New York, 337 U.S. 241 (1949) .......... passim
Wong v. Belmontes, 558 U.S. 15 (2009) .......................... 33
Woodson v. North Carolina, 428 U.S. 280 (1976) ............. 4, 27
DOCKETED CASES
Dunlap v. Idaho, No. 13-1315 (U.S.) .............................. 32
Kansas v. Carr, No. 14-449 (U.S.) .................................. 32
Kansas v. Carr, No. 14-450 (U.S.) ............................ 18, 32
CONSTITUTIONAL AND
STATUTORY PROVISIONS
U.S. Const. amend. VI ............................................ 2, 23, 28
18 U.S.C.
§924(c) ............................................................................ 7
§924(j)(1) ........................................................................ 7
§1959(a)(1) ..................................................................... 7
ix
TABLE OF AUTHORITIES—Continued
Page(s)
Federal Death Penalty Act, 18 U.S.C.
§§3591 et seq. ............................................................ 2, 5
§3591(a)(2) ..................................................................... 5
§3592(a) .......................................................................... 6
§3593(b) .......................................................................... 5
§3593(c) .................................................................... 6, 30
§3593(d) .................................................................... 6, 30
§3593(e) .................................................................... 6, 30
28 U.S.C. §1254(1) ................................................................ 2
OTHER AUTHORITIES
Douglass, John G., Confronting Death:
Sixth Amendment Rights at Capital
Sentencing, 105 Colum. L. Rev. 1967
(2005) ................................................................ 14, 24, 25
Langbein, John H., The Origins of Adversary
Criminal Trial (2003) ................................................ 24
IN THE
Supreme Court of the United States
No. 14ALEJANDRO ENRIQUE RAMIREZ UMAÑA,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
Alejandro Umaña respectfully petitions for a writ
of certiorari to review the judgment of the United
States Court of Appeals for the Fourth Circuit.
OPINIONS BELOW
The opinion of the court of appeals (App. 1a-84a) is
reported at 750 F.3d 320. The opinion of the district
court (App. 85a-112a) is reported at 707 F. Supp. 2d
621. The order denying rehearing en banc (App. 125a)
is unreported. The amended order denying rehearing
en banc, including the concurring and dissenting opinions (App. 113a-124a), is reported at 762 F.3d 413.
2
JURISDICTION
The court of appeals entered judgment on April 23,
2014, and denied rehearing en banc on June 27, 2014.
App. 125a. On September 8, 2014, the Chief Justice extended the time to file a petition for certiorari to November 24, 2014. This Court’s jurisdiction is invoked
under 28 U.S.C. §1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS
The Sixth Amendment provides in relevant part:
In all criminal prosecutions, the accused shall enjoy
the right … to be confronted with the witnesses against
him[.]
U.S. Const. amend. VI.
Relevant provisions of the Federal Death Penalty
Act (FDPA), 18 U.S.C. §§3591 et seq., are reproduced in
the Appendix. App. 127a-142a.
INTRODUCTION
This case presents a critical question on which federal and state courts are divided and that only this
Court can resolve: whether, and to what extent, the
Confrontation Clause applies at capital sentencing.
And the case is an ideal vehicle to resolve that question.
The facts here epitomize the very evil the Confrontation Clause was designed to prevent: Alejandro Umaña
was sentenced to death based on the hearsay statements of suspect-informants who accused Umaña of
murders that they themselves may have committed.
Umaña was convicted of shooting and killing two
men during an argument over a restaurant jukebox in
Greensboro, North Carolina.
(The shooting was
charged as a federal offense and tried under the Feder-
3
al Death Penalty Act because it was allegedly prompted by one of the victims’ disparaging reference to
Umaña’s gang.) The district court bifurcated the sentencing hearing. At the first, so-called “eligibility”
phase, the jury found two statutory aggravating factors: that Umaña killed more than one person and that
his conduct created a grave risk of death to others besides the victims.
Although the government could have asked the jury to weigh only those statutory aggravating factors in
determining whether to sentence Umaña to death, it
chose not to do so. Instead, at the second, so-called “selection” phase of sentencing, the government sought to
prove additional aggravating factors. Most importantly, the government alleged that Umaña had committed
three murders in Los Angeles for which he had never
been tried or convicted. As evidence, the government
presented the testimony of police officers who reported
the hearsay statements of other suspects in the murders accusing Umaña of being the shooter. The suspect-informants themselves did not testify, and Umaña
had no opportunity to confront or cross-examine them.
In closing argument, the government’s case for executing Umaña relied almost entirely upon the Los Angeles
murders. The jury found that Umaña had committed
those murders, found that the aggravating factors outweighed the mitigating factors, and sentenced Umaña
to death.
A sharply divided Fourth Circuit panel concluded,
on the authority of Williams v. New York, 337 U.S. 241
(1949), that this procedure did not offend the Confrontation Clause. App. 36a-38a. The court of appeals voted 8-5 against rehearing the case en banc, with the concurring opinion again relying on Williams. App. 113a119a.
4
That reliance was misguided. Williams held that a
state judge exercising his “discretion … to sentence to
life imprisonment or death” could consider hearsay evidence of prior unadjudicated offenses without contravening due process. 337 U.S. at 245, 251-252. But
the constitutional landscape has shifted dramatically in
the 65 years since Williams was decided, rendering the
court of appeals’ broad reading of Williams irreconcilable with the law as it stands today.
First, the Court has realigned its Confrontation
Clause jurisprudence with the original understanding of
the Clause as a prohibition on the admission of testimonial hearsay unless the witness is unavailable and the
defendant has had a prior opportunity to cross-examine
him. See, e.g., Crawford v. Washington, 541 U.S. 36
(2004). Second, the Court has repeatedly held that Sixth
Amendment protections—in particular, the right to a
jury trial—attach to any fact-finding necessary to the
imposition of a higher sentence than a finding of guilt by
itself would allow. See, e.g., Blakely v. Washington, 542
U.S. 296 (2004); Ring v. Arizona, 536 U.S. 584 (2002).
And, finally, “[i]n the intervening years [since Williams],” this Court has recognized that “death is … different.” Gardner v. Florida, 430 U.S. 349, 357 (1977)
(plurality). The Court’s death-penalty jurisprudence has
eliminated the unfettered sentencing discretion Williams took for granted, requiring a finding of aggravating circumstances and a conclusion that aggravating factors outweigh mitigating factors before death can be imposed. See, e.g., Woodson v. North Carolina, 428 U.S.
280 (1976); Furman v. Georgia, 408 U.S. 238 (1972).
Those three lines of cases, taken together, can logically lead to only one conclusion: The Constitution does
not permit basing a death sentence on an aggravating
factor proven by testimonial hearsay.
5
As discussed further below, some courts have in
fact reached that conclusion. But others, like the court
of appeals here, have continued to view themselves as
bound by a broad reading of Williams and thus unable
to take full account of the sea change in this Court’s
Sixth and Eighth Amendment jurisprudence. There is
thus widespread confusion and disagreement as to Williams’ reach and the extent to which the Confrontation
Clause’s protections apply to capital sentencing. And
because only this Court can clarify whether and to what
extent Williams remains good law in light of the
Court’s later decisions, that confusion will not be resolved absent this Court’s review. As the dissenters
from the denial of rehearing en banc wrote, however
the issue is ultimately decided, “Supreme Court review
is … vital in order to resolve the tension in current
death penalty doctrine and to achieve uniformity across
federal prosecutions.” App. 121a. This case presents
the Court with the perfect opportunity to do so.
STATEMENT
A. The Federal Death Penalty Act
The Federal Death Penalty Act, 18 U.S.C. §§3591 et
seq., governs the imposition of the death penalty in federal court. A defendant found guilty of a crime referenced in §3591 receives “a separate sentencing hearing
to determine the punishment to be imposed.” Id.
§3593(b). During the sentencing hearing, the same jury
that determined the defendant’s guilt considers aggravating factors put forward by the government and mitigating factors put forward by the defendant. Id. Following this hearing, the jury must make a series of factual findings. It must determine beyond a reasonable
doubt that the defendant committed the crime with the
intent required by 18 U.S.C. §3591(a)(2). It must also
6
find unanimously and beyond a reasonable doubt the existence of any statutory or nonstatutory aggravating
factors. Id. §3593(c), (d). Finally, any juror may find the
existence of a mitigating factor by a preponderance of
the evidence. Id. §§3592(a), 3593(c), (d). If the jury finds
that the crime was committed with the requisite intent
and at least one statutory aggravating factor exists, it
must determine “whether all the aggravating … factors
found to exist sufficiently outweigh all the mitigating …
factors found to exist to justify a sentence of death.” 18
U.S.C. §3593(e).
Although the procedure is not required or even expressly authorized by the FDPA, some courts, including the district court below, have bifurcated the sentencing hearing into two phases: (1) an “eligibility”
phase, at which the government proves the existence of
at least one statutory aggravating factor, and (2) a “selection” phase, at which the government may attempt
to prove additional aggravating factors and the defendant may attempt to prove mitigating factors. See, e.g.,
App. 89a-90a, 97a; United States v. Jordan, 357 F.
Supp. 2d 889, 902-904 (E.D. Va. 2005).
B. Umaña’s Arrest And Indictment
In December 2007, Alejandro Umaña was arrested
by local authorities for the murder of two brothers at a
Mexican restaurant in Greensboro, North Carolina.
App. 1a-2a, 5a-7a. The prosecution’s evidence indicated
that Umaña and his friends had a disagreement with
the victims, Ruben and Manuel Garcia Salinas, over
what music should be played on the jukebox. That disagreement escalated into a physical confrontation, during which one of the Garcia brothers insulted Umaña’s
gang, Mara Salvatrucha, commonly known as MS-13.
App. 5a-6a. According to the prosecution, Umaña drew
7
his gun and fired five times, killing the Garcia brothers
and wounding another man. App. 6a-7a.
State prosecutors charged Umaña with noncapital
murder. CAJA309. While Umaña was awaiting trial in
state custody, however, unbeknownst to his counsel,
Los Angeles police interrogated Umaña about two unsolved shootings in Los Angeles, in which MS-13 was
believed to be involved. After the officers assured
Umaña that his statements would not “cost” or “affect[]” him (CAJA4275, 4314), Umaña admitted that he
was present or nearby for both shootings, but stated
that he did not commit either shooting (App. 8a).
In June 2008, federal prosecutors indicted Umaña
for the Greensboro murders and also indicted 25 other
individuals for various offenses stemming from their
participation in MS-13 gang activities. CAJA318-422.
As relevant here, the indictment charged Umaña with
murder in aid of racketeering in violation of 18 U.S.C.
§1959(a)(1) and use of a firearm in relation to a crime of
violence resulting in death in violation of 18 U.S.C.
§924(c), (j)(1). App. 8a-9a. Federal prosecutors did not
charge Umaña with the Los Angeles crimes, but filed a
Notice of Intention to Seek the Death Penalty listing a
number of statutory and non-statutory aggravating
factors, including the unadjudicated murders in Los
Angeles, that the government contended justified a
death sentence. App. 86a-89a.
C. The District Court’s In Limine Ruling
Umaña sought to exclude hearsay evidence of the
unadjudicated Los Angeles murders from the sentencing hearing, arguing that it would violate his Confrontation Clause rights. The district court held that the Confrontation Clause “applies to the eligibility phase of capi-
8
tal sentencing proceedings,” but does not bar “hearsay
testimony offered during the selection phase.” App. 97a98a. To confine the presentation of unconfronted testimonial evidence to the selection phase, the court decided
to “bifurcate eligibility and selection phases into two discrete proceedings.” App. 97a.
D. Umaña’s Conviction And Sentencing
After a trial, the jury convicted Umaña of all counts.
App. 8a-9a.
During the eligibility portion of the sentencing
hearing, the government alleged two statutory aggravating factors: grave risk of death to persons in addition to the victims, and the killing of more than one
person in a single criminal episode. App. 9a. To prove
these factors, the government relied “almost entirely
on evidence from the guilt phase.” Resp. C.A. Br. 7; see
also CAJA2571-2604. The jury found that both aggravating factors existed and that Umaña acted with the
requisite mens rea as to each of the capital counts.
App. 9a.
At the selection phase, the government sought to
prove four additional aggravating factors. App. 9a-10a.
Most significantly, the government alleged that Umaña
had committed the two previous shootings in Los Angeles for which he had never been tried or convicted—
one on Fairfax Street, in which two people were killed,
and one in Lemon Grove Park, in which one person was
killed and two were injured. App. 3a.
According to the government, the Fairfax incident
began as a confrontation between MS-13 members and
members of a group called “Posted on Fairfax.” As the
MS-13 members drove past two Posted on Fairfax
members, the groups began flashing gang signs at one
9
another. Some of the MS-13 members exited the car,
and one of them shot and killed the two Posted on Fairfax members. App. 4a.
The government’s argument that Umaña was the
Fairfax shooter was based primarily on self-serving
statements made to the LAPD by three suspects who,
during interrogation, acknowledged their own involvement in the crime. The two LAPD detectives who conducted the investigation summarized these statements
for the jury, and the government submitted the transcripts of two of the interrogations. CAJA2730-2806,
4061-4257.
According to the officers, nine months after the
murders, they detained two suspects, Luis Ramos and
Luis Rivera. CAJA2740-2743, 2761. Rivera admitted
that he and Ramos were in the car but claimed that
Umaña was the shooter. CAJA2740-2742. Ramos denied knowing anything about the crime. CAJA2743,
2765-2766. The officers put the two men in the same
room, where Ramos was heard to propose: “This is
what we’re going to say. I did not do anything and you
did not do anything.” CAJA2766-2767. After spending
the weekend in the same jail cell with Rivera, Ramos
admitted he was in the car and fingered Umaña as the
shooter. CAJA2745, 2769.
The officers also testified that they interrogated
the driver of the car, Rene Arevalo, who was known to
have been involved in past shootings. CAJA2771. In
fact, two bystanders uninvolved in the offense told the
police that the driver of the car—that is, Arevalo—was
the shooter. CAJA2757, 2775-2776, 2799, 4492. After
the officers advised Arevalo that they believed Ramos
and Rivera and not the bystanders, Arevalo admitted
that he was driving the car but claimed that Umaña
10
was the shooter. CAJA2789-2791, 4071. None of these
suspect-informants testified at the sentencing hearing,
and Umaña was never given an opportunity to crossexamine his three accusers.
The prosecution also presented testimonial hearsay
allegedly linking Umaña to a murder in Lemon Grove
Park. The shooting happened at night on an unlit basketball court. Four men were sitting on a bench when
two men approached them and opened fire. CAJA26852688. Two were injured and one died. CAJA2657-2658.
The uninjured man was a rival gang member who had
recently robbed an MS-13 member and was thought to
be the intended target of the shooting. CAJA28982899; App. 4a.
The government again presented self-serving hearsay statements by a suspect-informant to implicate
Umaña in the shooting. Arevalo, at that point in jail in
connection with the Fairfax murders, told an officer investigating the Lemon Grove incident that Umaña was
the shooter. CAJA2670-2671. Although the district
court noted that there was “[n]o real basis for why
[Arevalo] made that statement” (CAJA2889), the court
permitted the officer to testify at Umaña’s sentencing
hearing. Arevalo was not present and was never crossexamined.1
1
Scant additional evidence linked Umaña to the Lemon
Grove shooting. The government pointed to ballistics evidence
indicating that the same gun was used in the Lemon Grove and
Fairfax shootings (CAJA2818), but testimony during trial suggested that MS-13 gang members routinely shared their guns,
which “belong[ed] to the gang as a whole” (CAJA1282, 1440-1441).
The uninjured rival gang member, who circled Umaña’s photograph in a line-up, thought Umaña “resembled” the shooter, but he
was “not sure.” CAJA2896. Neither injured witness identified
Umaña as the shooter. CAJA2696-2697, 2707-2708.
11
These hearsay statements, collectively, were the
centerpiece of the government’s case for death. The
government’s closing argument repeatedly referred to
the Los Angeles crimes and to the allegation that
Umaña had “killed before.” App. 69a-70a; see, e.g., CAJA3403 (“[Umaña] had earned those two letters on his
forehead and he earned them by killing.”); CAJA3405
(claiming that Umaña thought after shooting the Garcia
brothers, “I’ve done this before. I know what I have to
do.”); CAJA3406 (claiming that Umaña thought, “I
know they were dead because I know what dead is.
I’ve killed before.”); CAJA3407 (“[W]e know he’s killed
before.”); CAJA3408 (“Sure [the Fairfax murder]
sounds familiar because that’s exactly what happened
later in Greensboro.”).
The jury found the existence of all the claimed aggravating factors, including the Los Angeles murders.
App. 2a. The jury unanimously found certain mitigating factors: Umaña was raised without the care of his
mother; the Greensboro shooting did not involve substantial planning; it occurred during an emotionally
charged argument; and it was a result of Umaña’s indoctrination into MS-13’s culture of violence. CAJA3573-3575. Some jurors also found as mitigating factors, among other things, that Umaña was exposed to
violent civil war in El Salvador at an early age; that his
childhood was marked by poverty and other factors
that impeded his moral development; and that his early
life experiences made him more susceptible to recruitment into MS-13. CAJA3573-3574. After weighing all
the factors, the jury sentenced Umaña to death. App.
2a.
12
E. The Court Of Appeals Decision
The Fourth Circuit affirmed, holding that the Confrontation Clause did not apply to the testimonial hearsay presented to prove the prior unadjudicated murders. App. 37a-38a.
The Fourth Circuit reasoned that “[c]ourts have
long held that the right to confrontation does not apply
at sentencing, even in capital cases.” App. 36a. For
that proposition, the court relied on this Court’s decision in Williams v. New York, 337 U.S. 241 (1949), concluding that Williams “squarely disposes of Umaña’s
argument that the Sixth Amendment should apply to
capital sentencing.” App. 37a. The court opined that
the rule in Williams was a salutary one because applying the Confrontation Clause at sentencing “would
frustrate the policy of providing full information to sentencers.” App. 38a.
In a portion of its decision in tension with its discussion of Williams, the court went on to note that a
jury may engage in “‘constitutionally significant’” factfinding during the eligibility phase when it “finds the
facts necessary to support the imposition of the death
penalty.” App. 40a. The court distinguished the selection phase, however, reasoning that during that phase
“the jury exercises discretion in selecting a life sentence or the death penalty, and any facts that the jury
might find during that phase do not alter the range of
sentences it can impose on the defendant.” Id.
Judge Gregory dissented. He would have held, in
light of the original understanding of the Confrontation
Clause and the structure of FDPA proceedings, that
the Confrontation Clause applies to evidence of aggravating factors introduced at either the eligibility or the
selection phase. App. 65a. The dissent explained that
13
under the FDPA, a defendant cannot be sentenced to
death based solely on the facts found at the eligibility
phase. App. 67a, 77a-79a. Rather, the jury must find
all the aggravating factors, and determine that they
outweigh the mitigating factors, before it can impose a
death sentence. App. 78a. “As such, the permissible
range of sentencing is increased in th[e selection] stage,
indicating that Sixth Amendment rights do apply.”
App. 78a-79a.
The significance of facts found at the selection
phase was particularly clear here, the dissent stated,
because without the hearsay evidence linking Umaña to
the Los Angeles murders, “it is doubtful that the government could meet the burden necessary to apply the
death penalty under the FDPA.” App. 78a. The “unconfronted testimony used against Umaña was as critical to the government’s case as it was inherently suspect.”
App. 69a.
Umaña’s “three potential codefendants” had a “strong incentive to push the blame
onto Umaña.” App. 70a. And the remaining evidence
linking Umaña to the Los Angeles murders was “conflicting,” “equivocal, unclear,” and “weak.” App. 71a,
72a. The dissent concluded that “Umaña is being sent
to his death based on accusations by self-interested accomplices … whose testimony, at least in part, was contradicted by independent witnesses.” App. 84a.
Umaña petitioned for rehearing en banc. By an 8-5
vote, the court denied the petition. App. 113a. Judge
Wilkinson, joined by Judge Niemeyer, issued a concurring opinion explaining that the court was bound by
Williams. App. 114a-119a. Even if Williams had been
undermined by subsequent decisions of this Court, the
concurrence reasoned, to depart from Williams would
be to “ignore a clear and consistent directive from the
14
Supreme Court not to overturn higher precedent
preemptively.” App. 114a.
Judge Gregory, joined by Judge Wynn, dissented
“to explain why … Supreme Court review of Mr. Umaña’s argument is warranted.” App. 119a. The dissent
explained that “Supreme Court review is vital because
this Court … misread the past five decades of Supreme
Court jurisprudence on the Sixth Amendment and the
death penalty,” and “this misreading is the difference
between Mr. Umaña living and dying.” Id. “However,
even if [our] view on the reach of the Confrontation
Clause is incorrect,” the dissenters wrote, “Supreme
Court review is still vital in order to resolve the tension
in current death penalty doctrine” caused by the uncertainty regarding the continuing vitality of Williams
“and to achieve uniformity across federal prosecutions.”
App. 121a.
REASONS FOR GRANTING THE PETITION
I.
THE DECISION BELOW DEEPENS THE LONGSTANDING
SPLIT OF AUTHORITY ON W HETHER AND TO WHAT
EXTENT THE CONFRONTATION CLAUSE APPLIES IN
CAPITAL SENTENCING PROCEEDINGS
There is substantial confusion and a deepening split
of authority among the federal and state courts on
whether—and to what extent—the Confrontation
Clause applies in a capital sentencing proceeding. See
United States v. Fields, 483 F.3d 313, 363 (5th Cir.
2007) (Benavides, J., dissenting in part) (“The persuasive authorities, and our Sister Circuits in particular,
are divided on the issue sub judice.”); United States v.
Mills, 446 F. Supp. 2d 1115, 1128 (C.D. Cal. 2006)
(“[T]here is a great deal of disagreement over whether
and to what extent Williams still controls.”); State v.
Carr, 331 P.3d 544, 724 (Kan. 2014) (“Until we have a
15
definitive answer from [the U.S. Supreme] Court, we
recognize that other jurisdictions are split and we accept … that confrontation law is applicable to a capital
penalty phase trial.”); Douglass, Confronting Death:
Sixth Amendment Rights at Capital Sentencing, 105
Colum. L. Rev. 1967, 1970 (2005) (“Lower courts … disagree[] about questions as fundamental as, ‘Does the
right of confrontation apply at capital sentencing?’”).
Uncertainty regarding the continuing vitality and
scope of Williams has led to a split among the courts of
appeals. One court of appeals has held that the confrontation right applies at capital sentencing, albeit only in narrow circumstances. Proffitt v. Wainwright, 685
F.2d 1227, 1251-1255 (11th Cir. 1982), modified, 706
F.2d 311, 311-312 (11th Cir. 1983). Two courts of appeals (including the court below) have held, based on
Williams, that confrontation does not apply at the selection phase of capital sentencing but reserved judgment as to whether it would apply during the eligibility
phase. App. 39a-41a; Fields, 483 F.3d at 325-327. And
one court of appeals (on collateral review) has relied on
Williams to refuse to recognize any confrontation right
at sentencing. Szabo v. Walls, 313 F.3d 392, 398 (7th
Cir. 2002).
State courts of last resort and lower federal courts
have split along similar lines. While most of those courts
recognize that the confrontation right applies at capital
sentencing, they disagree as to whether the right applies
throughout the proceeding or only at the eligibility
phase (or its state-law analogue). Three federal trial
courts and six state courts of last resort have held that
the confrontation right applies throughout capital sentencing, and four federal trial courts and four state
courts of last resort have held or suggested that confrontation applies only to the eligibility determination. Two
16
state courts of last resort do not recognize a right to confrontation at capital sentencing at all.
A. Courts That Have Held That The Confrontation Clause Applies At Capital Sentencing
Although no court of appeals has held that the right
to confrontation applies to all evidence introduced during a capital sentencing proceeding, the Eleventh Circuit has determined that the Confrontation Clause applies to hearsay in a psychiatric report introduced at the
penalty phase. See Proffitt, 706 F.2d at 311-312, modifying 685 F.2d at 1251-1255, 1269 (vacating death sentence on the ground that the defendant had a constitutional right to cross-examine the report’s author). Proffitt noted that Williams viewed procedural protections
at capital sentencing as “no more rigorous” than those
at noncapital sentencing, but explained that the “constitutional requirements governing capital sentencing …
have undergone substantial evolution in the wake of
Furman.” Proffitt, 685 F.2d at 1252. And it explained
that “[t]he Supreme Court’s emphasis … on the reliability of the factfinding … [needed] to impose the death
penalty convinces us that the right to cross-examine
[such] adverse witnesses applies.” Id. at 1254.2
2
The Eleventh Circuit has recently made clear, however, that
Proffitt is limited to its facts. Muhammad v. Secretary, Fla. Dep’t
of Corr., 733 F.3d 1065, 1075 (11th Cir. 2013). That decision rejected on collateral review a Confrontation Clause challenge where the
defendant had an opportunity to rebut the hearsay. Id. at 1077
(citing Williams). Muhammad’s limiting of Proffitt occasioned a
lengthy dissent. See id. at 1083, 1084 & n.4 (Wilson J., concurring
in part and dissenting in part) (noting that Proffitt is “routinely
cited [in the Circuit] … as authority for the proposition that the
Confrontation Clause applies at a capital sentencing” and that
while Williams “ha[s] not been overturned,” “it is evident that the
17
Three federal district courts have held that the
Confrontation Clause applies more broadly throughout
a capital sentencing proceeding, including during the
selection phase. In United States v. Mills, for example,
the government sought at the selection phase to introduce evidence of “never-prosecuted acts of murder.”
446 F. Supp. 2d at 1119. Noting that “death penalty jurisprudence has evolved significantly” “[s]ince Williams,” the court relied on the structure of the FDPA
and this Court’s decisions in Ring v. Arizona, 536 U.S.
584 (2002), Blakely v. Washington, 542 U.S. 296 (2004),
and United States v. Booker, 543 U.S. 220 (2005), to
hold that confrontation is required for testimonial evidence of “aggravating factor[s],” including factors introduced during the selection phase. Id. at 1123, 1135.
It reasoned that because “the FDPA completely limits
the jury’s discretion until it has rendered its findings on
the aggravating factors (whether statutory or nonstatutory),” “Crawford[’s] protections apply” to all aggravating factors. Id. at 1134, 1135. Two other federal
district courts have reached the same conclusion, reasoning that what “actually increases the punishment is
the existence of all the aggravating factors found by the
jury (taken together).” United States v. Concepcion
Sablan, 555 F. Supp. 2d 1205, 1221 (D. Colo. 2007);
United States v. Stitt, 760 F. Supp. 2d 570, 581 (E.D.
Va. 2010) (same).
Six state courts of last resort have also held that
the Confrontation Clause applies throughout capital
sentencing. Rodgers v. State, 948 So. 2d 655, 663 (Fla.
2006) (testimonial hearsay related to a prior felony
“violated Rodgers’ Sixth Amendment right under
Supreme Court … has developed subsequent case law expanding
Sixth Amendment protections in capital sentencing hearings”).
18
Crawford”); State v. Carr, 331 P.3d 544, 723 (Kan.
2014), petition for cert. filed, No. 14-450 (Oct. 16, 2014)
(“confrontation law is applicable” at the penalty phase
to hearsay allegations in police reports); Grandison v.
State, 670 A.2d 398, 413 (Md. 1995) (right to crossexamine “extends to the sentencing phase of a capital
trial and applies to victim impact witnesses as well as
factual witnesses”); Pitchford v. State, 45 So. 3d 216,
251-252 (Miss. 2010) (same); State v. Bell, 603 S.E.2d 93,
115-116 (N.C. 2004) (relying on Crawford to hold that
confrontation is required for evidence of “aggravating
circumstance[]” related to a prior crime of violence);
Russeau v. State, 171 S.W.3d 871, 880-881 (Tex. Crim.
App. 2005) (introduction of prison “incident” and “disciplinary” reports during the “punishment phase” violated defendant’s confrontation right).
B. Courts That Have Held That The Confrontation Clause Does Not Apply At The Selection
Phase But Held Or Suggested That It Would
Apply At The Eligibility Phase
Two courts of appeals—the court below and the
Fifth Circuit—have held, relying on Williams, that the
Confrontation Clause does not apply at the selection
phase of a capital sentencing proceeding, while leaving
open the possibility that it might apply at the eligibility
phase. In Fields, the Fifth Circuit held that “the principles underlying Williams are relevant, persuasive,
and ultimately fatal to Fields’s Confrontation Clause
challenge” to evidence introduced during the selection
phase of capital sentencing. 483 F.3d at 338. However,
the court “decline[d] to decide the applicability of the
Confrontation Clause to the presentation of evidence at
sentencing that is relevant … to death eligibility.” Id.
at 326 n.7; see also id. at 331 n.18 (“[T]hough labeled as
‘sentencing factors,’ [death-eligibility] factors are more
19
appropriately considered as elements of a capital offense.” (citing Ring)).3 The Fourth Circuit below similarly, and without resolving the question, distinguished
selection from eligibility on the ground that the jury
purportedly “finds the facts necessary to support the
imposition of the death penalty in the guilt and eligibility phases of trial[] … only.” App. 40a.
Several federal district courts, including the district court below, have gone a step further and held
that “testimonial hearsay evidence offered during the
eligibility phase would have to meet the requirements
of Crawford … [but] Crawford would not … bar similar
hearsay testimony offered during the selection phase.”
App. 97a-98a; see also United States v. Jordan, 357 F.
Supp. 2d 889, 903 (E.D. Va. 2005) (same); United States
v. Bodkins, 2005 WL 1118158, at *4-5 (W.D. Va. 2005)
(same); cf. United States v. Johnson, 378 F. Supp. 2d
1051, 1060-1062 & n.5 (N.D. Iowa 2005) (holding that
confrontation right does not apply at selection after assuming, without deciding, that it applies at eligibility).
Four states with capital schemes comparable to the
FDPA have drawn similar conclusions. Two states
3
The Fifth Circuit’s decision drew a sharp dissent from Judge
Benavides, who believed that “[t]ext, history, structure and precedent favor applying the Confrontation Clause with full force to
capital sentencing.” Fields, 483 F.3d at 376. He explained that
“the selection phase of FDPA sentencing [is not] purely discretionary, [because] a jury that finds a defendant death eligible ‘has
not found all the facts which the law makes essential to the punishment.’” Id. at 367 (quoting Blakely, 542 U.S. at 303-304). Rather, when the government relies on additional aggravating factors proven at the selection stage, the jury must still find that
those factors exist (and that all the aggravating factors together
outweigh any mitigating factors) before imposing a death sentence. Id. at 368. He would have held that the confrontation right
applies to such aggravating factors. Id. at 367-368.
20
have explicitly held that the right to confrontation extends only to testimony used to establish death eligibility. State v. McGill, 140 P.3d 930, 942 (Ariz. 2006) (en
banc); compare People v. Banks, 934 N.E.2d 435, 462
(Ill. 2010) (Confrontation Clause does not apply in proceeding akin to death selection), with People v. Ramey,
604 N.E.2d 275, 287 (Ill. 1992) (Confrontation Clause
violated where State “attempted to establish defendant’s eligibility for the death penalty” through testimony about which defense counsel was “prohibited from
questioning” the witness). Two other states have
raised the distinction without resolving the question.
State v. Johnson, 284 S.W.3d 561, 584 (Mo. 2009); State
v. Berget, 826 N.W.2d 1, 20-21 & n.11 (S.D. 2013).
C. Courts That Have Held Or Implied That The
Confrontation Clause Does Not Apply At All
In Capital Sentencing Proceedings
Finally, one court of appeals and two state courts of
last resort have held or suggested that confrontation
rights do not extend to any phase of capital sentencing
proceedings.
In Szabo v. Walls, 313 F.3d 392 (7th Cir. 2002), the
Seventh Circuit rejected on collateral review a claim
that the Confrontation Clause applied at capital sentencing. Relying on Williams, the Court determined
that the Confrontation Clause “applies through the
finding of guilt, but not to sentencing, even when that
sentence is the death penalty.” Id. at 398.4
Both state courts also relied on Williams, reasoning that “‘most of the information now relied upon by
4
The court noted, however, that it could not consider the effect of Apprendi and Ring on Williams, since the question before
it was whether “in 1985 Illinois was entitled to proceed as it did”—
a question the court believed Williams resolved. 313 F.3d at 399.
21
[fact-finders] to guide them in the intelligent imposition
of sentences would be unavailable if information were
restricted to that given in open court by witnesses subject to cross-examination.’” Summers v. State, 148 P.3d
778, 782 (Nev. 2006) (quoting Williams, 337 U.S. at
250); see also State v. Dunlap, 313 P.3d 1, 34 (Idaho
2013) (“‘[M]odern penological policies … favor sentencing based on the maximum amount of information about
the defendant’” (citing Williams, 337 U.S. at 246-250)),
cert. denied, 135 S. Ct. 355 (2014). Neither court believed that Crawford altered that conclusion. See
Summers, 148 P.3d at 782, 783 (“Crawford did not
overrule Williams”); Dunlap, 313 P.3d at 34 (similar).
In Summers, that conclusion was drawn over the dissent of three justices who contended that, notwithstanding Williams, a defendant is “entitled to confront
the witnesses against him in the eligibility phase of a
capital penalty hearing because it is during this phase
that the jury must determine whether the elements of
capital murder have been established.” 148 P.3d at 786
(Rose, C.J., concurring in part and dissenting in part).
* * *
The decision below thus reflects a deep divide
among federal and state courts over whether and to
what extent the Confrontation Clause applies at capital
sentencing. There is no sign that the split will resolve
itself. Indeed, the uncertainty surrounding the continued viability of Williams all but ensures that the division will persist. As described above, courts that have
given Williams a broad reading have concluded that
they are not free to revisit Williams’ reasoning even if
it has been undermined by later developments. See,
e.g., App. 114a-115a; Summers, 148 P.3d at 783 (refusing to recognize confrontation rights at capital sentencing “[a]bsent controlling authority overruling Wil-
22
liams”). Other courts have determined that this
Court’s later decisions have undermined Williams in
whole or in part. Only this Court can resolve the tension between Williams and the Court’s subsequent
Sixth and Eighth Amendment caselaw, and heal the
confusion and disarray that tension has generated.
II. THE DECISION BELOW IS WRONG
The Fourth Circuit’s decision was based on one
central, mistaken premise: It relied on Williams to
draw a bright line between the guilt and penalty phases
of a capital trial. According to the Fourth Circuit, Confrontation Clause rights end where capital sentencing
begins. App. 36a (“Courts have long held that the right
to confrontation does not apply at sentencing, even in
capital cases.” (citing Williams)); App. 37a (“We conclude that Williams squarely disposes of Umaña’s argument that the Sixth Amendment should apply to capital sentencing”). That conclusion cannot be reconciled
with the original understanding of the Confrontation
Clause or with this Court’s post-Williams Sixth and
Eighth Amendment jurisprudence. And the Fourth
Circuit’s alternative suggestion that a line might be
drawn between the so-called “eligibility” and “selection” phases of an FDPA sentencing proceeding is
equally unsound in cases like this, in which a death sentence is based on the jury’s finding of aggravating factors at the “selection” stage.
A. The Confrontation Clause Was Intended To
Prevent Defendants From Being Put To
Death Based On Hearsay Accusations
1. Umaña was sentenced to death based on the
out-of-court statements of suspects in the same unadjudicated murders of which they accused him. That is
23
precisely the scenario the Confrontation Clause was
designed to prevent.
As this Court recognized in Crawford v. Washington, “the principal evil at which the Confrontation
Clause was directed was the … use of ex parte examinations as evidence against the accused,” and in particular out-of-court testimonial statements such as
“[s]tatements taken by police officers in the course of
interrogations.” 541 U.S. 36, 50, 52 (2004). Crawford
discussed the notorious trial of Sir Walter Raleigh, who
was convicted of treason and sentenced to death based
on the out-of-court testimony of an alleged accomplice.
See id. at 44-45. In this case, the government used precisely the same kind of testimonial hearsay—blameshifting statements by alleged accomplices—to obtain a
death sentence.
To be sure, unlike Raleigh’s trial, Umaña’s trial
was broken into guilt, eligibility, and selection phases,
and the suspect-informants’ statements were introduced only at the selection phase—that is, the phase at
which Umaña was actually sentenced to death. But the
Framers would not have recognized such distinctions.
As an initial matter, the Sixth Amendment’s text
provides that the right to confrontation—like the right
to counsel—applies “[i]n all criminal prosecutions.”
U.S. Const. amend VI. Because sentencing is part of a
“criminal prosecution[],” id., “the right to counsel applies at sentencing,” Mempa v. Rhay, 389 U.S. 128, 134
(1967). See also Strickland v. Washington, 466 U.S.
668, 686-687 (1984) (“A capital sentencing proceeding …
is sufficiently like a trial in its adversarial format …
that counsel’s role in the proceeding is comparable to
counsel’s role at trial.”). There is no textual basis for
treating the right to confrontation any differently.
24
Nor is there any historical basis, in capital cases,
for cutting off the confrontation right at sentencing.
When the Sixth Amendment was drafted, for a host of
felonies, a guilty verdict mandated a death sentence.
Conviction and capital sentencing thus necessarily occurred in a single proceeding. But the jury in those
proceedings did not simply determine guilt or innocence with no eye to the sentencing consequences. On
the contrary, juries frequently brought in verdicts of
not guilty or guilty of lesser offenses precisely to avoid
application of the death penalty. And that practice was
accepted as a feature of the jury system—a necessary
safeguard against “too much death.” Langbein, The Origins of Adversary Criminal Trial 334 (2003); see id. at
59 (“Only a small fraction of eighteenth-century criminal trials were genuinely contested inquiries into guilt
or innocence … . To the extent that trial had a function
in [the majority of] cases … it was to decide the sanction.”); Douglass, Confronting Death at 1972-1974,
2011-2015; see also Apprendi v. New Jersey, 530 U.S.
466, 479 n.5 (2000) (citing Blackstone). The Confrontation Clause was thus designed to ensure, not just that a
defendant would not be found guilty, but also that he
would not face death without an opportunity to confront his accusers.5
5
Williams stated that when “the American colonies became a
nation, courts in this country and in England practiced a policy
under which a sentencing judge could exercise a wide discretion in
the sources and types of evidence used to assist him.” 337 U.S. at
246. As discussed above, with respect to capital sentencing, that
is simply not so. Capital sentences were imposed by juries in proceedings in which the Sixth Amendment’s adversarial protections
applied. The sources Williams cited involved only non-capital
sentencing, which has a very different history. See Douglass, Confronting Death at 1977-1978. Historical evidence suggests that
sentencing in such cases did frequently occur in proceedings that
25
2. Williams should not be a barrier to that conclusion. First, Williams was not a Confrontation
Clause case at all. It was decided before the confrontation right was incorporated against the states. See
Pointer v. Texas, 380 U.S. 400, 403 (1965). Williams
thus considered only the general protections of the Due
Process Clause and not the specific right to confront
adverse witnesses afforded by the Sixth Amendment.
337 U.S. at 245.
Moreover, when Williams was decided, the Confrontation Clause was satisfied so long as an out-ofcourt statement bore “adequate ‘indicia of reliability.’”
Ohio v. Roberts, 448 U.S. 56, 66 (1980). Crawford reordered Confrontation Clause jurisprudence when it held
that all out-of-court testimonial statements are inadmissible—regardless of their reliability—unless the
witness is unavailable and the defendant has had a prior opportunity to cross-examine the speaker. See 541
U.S. at 68-69 (overruling Roberts).
Put simply, Crawford made clear that the constitutional command is “not that evidence be reliable, but
that reliability be assessed in a particular manner: by
testing in the crucible of cross-examination.” 541 U.S.
at 61. The Fourth Circuit’s reasoning here—that “[a]
policy of full information at sentencing, unrestricted by
the [Confrontation Clause], enhances reliability by
providing the sentencing jury with more relevant evidence” (App. 39a)—may be consistent with Williams,
but it cannot be reconciled with Crawford. “Dispensing
with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a de-
lacked the formality, and attendant protections, of jury trials. See
id. at 2016-2018.
26
fendant is obviously guilty. This is not what the Sixth
Amendment prescribes.” Crawford, 541 U.S. at 62.
In any event, the notion that refusing to permit a
defendant to confront witnesses accusing him of crimes
in which they were themselves implicated increases reliability is absurd on its face. The “very mission” of the
Confrontation Clause “‘is to advance the accuracy of
the truth-determining process,’” Tennessee v. Street,
471 U.S. 409, 415 (1985), and cross examination is “‘the
greatest legal engine ever invented for the discovery of
truth,’” White v. Illinois, 502 U.S. 346, 356 (1992). That
is particularly true of the kind of evidence at issue here.
“Not only are … incriminations [by potential codefendants] devastating to the defendant but their credibility
is inevitably suspect … . The unreliability of such evidence is intolerably compounded when the alleged accomplice … does not testify and cannot be tested by
cross-examination. It was against such threats to a fair
trial that the Confrontation Clause was directed.” Bruton v. United States, 391 U.S. 123, 136 (1968).
B. This Court’s Jury-Trial Decisions Demonstrate That The Confrontation Right Applies
To Aggravating Factors Found At The Selection Phase Of Capital Sentencing
The Fourth Circuit’s reliance on Williams’ sharp
distinction between trial and sentencing also cannot be
squared with the nature of modern death-penalty proceedings and this Court’s decisions regarding the nature of the jury-trial right at sentencing.
1. Williams involved a state capital sentencing
scheme that afforded the judge essentially unfettered
sentencing discretion. Indeed, Williams observed that
had the judge imposed a death sentence “giving no reason at all,” “no federal constitutional objection would
27
have been possible.” 337 U.S. at 252. Such a capital
sentencing scheme would be unconstitutional today.
See, e.g., Lockett v. Ohio, 438 U.S. 586, 598 (1978) (noting that “[t]he constitutional status of discretionary
sentencing in capital cases changed abruptly … [after]
Furman” and citing Williams as a decision undermined
by Furman); Gregg v. Georgia, 428 U.S. 153, 188-189
(1976) (opinion of Stewart, Powell, and Stevens, JJ.) (in
capital cases, sentencing discretion must be “directed
and limited” so that there can be a “‘meaningful basis
for distinguishing the … cases in which [the death penalty] is imposed from the many cases in which it is
not’”); Woodson v. North Carolina, 428 U.S. 280, 305
(1976) (because “the penalty of death is qualitatively
different from a sentence of imprisonment … there is a
corresponding difference in the need for reliability in
the determination that death is the appropriate punishment in a specific case”).
This Court quickly recognized that Furman and
subsequent decisions restricting sentencing discretion in
capital cases precluded reading Williams broadly. “In
1949, when the Williams case was decided,” the Court
explained, it was “assumed that after a defendant was
convicted of a capital offense, … a trial judge had complete discretion to impose any sentence within the limits
prescribed by the legislature.” Gardner v. Florida, 430
U.S. 349, 357 (1977) (plurality). Since then, however, the
Court has recognized both that “death is … different”
and that “the sentencing process, as well as the trial”
must satisfy due process. Id. at 358 (rejecting argument
that Williams permitted death sentence based in part on
confidential information in presentence report).
Modern death-sentencing schemes, including the
FDPA, thus do not permit a judge or jury to exercise
unguided discretion in determining whether to sen-
28
tence a defendant to death. Rather, they require a
finding of aggravating factors that can meaningfully
distinguish the few cases in which the death penalty is
permissible from the many in which it is not. And they
require that the sentencer consider all mitigating factors and weigh them against the aggravators before
imposing death. Lockett, 438 U.S. at 604-605.
2. This Court has recognized that such a scheme
does not permit drawing a bright line between trial and
sentencing with respect to the right to a jury trial.6 In
Apprendi, this Court held that “any fact that increases
the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. And that is
so even if the government labels the fact a “sentencing
factor”: The question “is one not of form, but of effect.”
Id. at 494.
In Ring, the Court applied that principle to Arizona’s death-penalty scheme, holding that aggravating
factors necessary to subject a defendant to the death
penalty must be found by the jury beyond a reasonable
doubt. 536 U.S. at 609. Ring overruled Walton v. Arizona, 497 U.S. 639 (1990), which had held that because
aggravating factors were merely “sentencing ‘considerations,’” they need not be found by a jury, id. at 648.
Rejecting the State’s argument that the first-degree
murder statute authorized death as a penalty, the
Court held that “[i]f a State makes an increase in a de6
Notably, there is a stronger textual basis for such linedrawing in the jury-trial context than in the confrontation context.
The right to confrontation applies “[i]n all criminal prosecutions,”
while the defendant has a “right to a … trial, by an impartial jury.”
U.S. Const. amend. VI (emphasis added). The confrontation right,
like the right to counsel, thus applies whenever the jury-trial right
applies but may apply even when the jury-trial right does not.
29
fendant’s authorized punishment contingent on the
finding of a fact, that fact—no matter how the State labels it—must be found by a jury beyond a reasonable
doubt.” Ring, 536 U.S. at 602.
Subsequently, in Blakely, the Court held that an
“exceptional” sentence in a kidnapping case could not be
imposed absent a jury finding of “deliberate cruelty”—
the justification for the exceptional sentence. 542 U.S.
at 303-305. Again, the Court rejected the State’s argument that the sentence was within the statutory maximum for kidnapping, and reiterated that “the prosecutor [must] prove to a jury all facts legally essential to
the punishment.” Id. at 313; see also Booker, 543 U.S. at
243-244 (striking down mandatory application of Sentencing Guidelines, which permitted judges to make factual findings that increased guideline ranges, even
though sentences were within statutory maximum); Alleyne v. United States, 133 S. Ct. 2151, 2157-2158 (2013).
In light of these decisions, the sharp line Williams
drew in the capital context between trial and sentencing is no longer tenable. Because the FDPA makes the
imposition of death turn on specific factual findings beyond a mere finding of guilt, the Sixth Amendment’s
protections—including the Confrontation Clause—
apply to those factual findings.
3. In a tacit admission that Williams has been
undermined by Apprendi and its progeny, the Fourth
Circuit acknowledged that a jury makes “‘constitutionally significant’” findings of fact during the eligibility
stage of FDPA sentencing. App. 40a. But the selection
stage—at least in a case like this where the jury finds
additional aggravating factors at that stage—is no different.
30
The Fourth Circuit opined that “[d]uring the sentence selection phase …, the jury exercises discretion
in selecting a life sentence or the death penalty, and
any facts that the jury might find during that phase do
not alter the range of sentences it can impose on the
defendant.” App. 40a. But where, as here, the government chooses to rely on non-statutory aggravating
factors presented during the selection phase, that is
simply not so. In such a case, although the jury must
find at least one statutory aggravating factor at the eligibility phase, it cannot impose a death sentence based
on that factor alone. Rather, the jury must first return
special findings on each of the additional aggravating
factors alleged at the selection phase; it must find each
such factor unanimously and beyond a reasonable
doubt. 18 U.S.C. §3593(c), (d). And before the jury
may sentence the defendant to death, it must weigh all
the aggravating factors—not simply those proven at
the eligibility phase—against all the mitigating factors
and determine that the aggravators collectively outweigh the mitigators. Id. §3593(e).
In this case, an aggravating factor that the government chose to present at the selection phase—that
Umaña had committed three other gang-related murders—was the crux of the government’s case for death.
Those previous murders dramatically overshadowed
the statutory aggravators presented at the eligibility
phase, which simply echoed the facts of the crime. Absent the previous murders, the jury would have had little or no basis to determine that the unplanned, emotionally-charged shooting of which Umaña was convicted warranted the death penalty. The hearsay evidence
regarding the previous murders permitted the jury to
find that the balance tipped in favor of death. Had the
31
jury found that the balance tipped the other way, a
death sentence would have been unlawful.
The “fact” of the previous unadjudicated murders
thus increased the maximum penalty that Umaña
faced. As Blakely put it, it was a fact “legally essential
to the punishment.” 542 U.S. at 313. Sixth Amendment protections should therefore attach to the finding
of that fact.
The Fourth Circuit’s contrary reasoning adopts a
form-over-substance approach that this Court has consistently rejected. Moreover, the consequence of that
approach is that the government may strategically
present the most damning evidence against the defendant at the stage of trial at which he enjoys the fewest
protections. The government should not be permitted
to shelter behind such formalism here, where the result
is that Umaña will be put to death based on self-serving
testimony of suspect-informants he could not confront
or cross-examine.
III. THIS CASE PRESENTS AN ISSUE OF EXCEPTIONAL IMPORTANCE A ND I S A N E XCELLENT V EHICLE F OR R ESOLVING I T
The decision below strips Umaña of his Sixth
Amendment right to confront his accusers in a proceeding in which the jury must decide whether he is fit to
live. At this critical juncture, the decision below holds,
the “constitutionally prescribed method of assessing
[the] reliability” of witness testimony, Crawford, 541
U.S. at 62, does not apply. That is wrong. The scope of
a defendant’s Sixth Amendment rights should not depend on a prosecutor’s decision about which facts to allege in the “eligibility” phase and which in the “selection” phase. Nor should it depend—as it does now—on
the venue in which a case is brought.
32
Whether the Confrontation Clause applies in capital sentencing is one of the most significant unsettled
questions regarding the death penalty. Because the
courts below are constrained by Williams, which has
generated profound confusion and disagreement, only
this Court can resolve the question, and it should be resolved now.
This case is an ideal vehicle to do so. It comes to
this Court on direct appeal from a federal court of appeals affirming a death sentence, and is thus unencumbered by the complexities that typically accompany
capital cases on federal habeas review. In addition,
there is “no dispute” that the challenged hearsay is testimonial in nature. Resp. C.A. Br. 84. Nor has the government argued harmlessness. Pet. C.A. Br. 39 (noting
the government’s waiver).7 For good reason. This case
demonstrates that the question presented can mean the
difference between life and death.
The Greensboro shooting—prompted by an emotionally-charged argument—itself lacked significant
features distinguishing it from the average non-deathworthy murder. See Atkins v. Virginia, 536 U.S. 304,
319 (2002) (“[T]he culpability of the average murderer
is insufficient to justify the most extreme sanction
7
This case thus suffers from none of the vehicle problems afflicting the petition this Court recently denied in Dunlap v. Idaho,
No. 13-1315, in which the State disputed, among other things,
whether the evidence at issue was testimonial, whether any error
was harmless, and whether the issue had been properly raised before the state court. Dunlap Opp. 9-11, 17-18, 19-21 (U.S. July 30,
2014). It is also a superior vehicle to the petitions in Kansas v.
Carr, Nos. 14-449, 14-450, in which the court’s judgments vacating
the sentences of death were based on other errors, not the admission of testimonial hearsay, and the court thus did not consider
harmlessness, Carr, 331 P.3d at 739. At a minimum, if this Court
grants Carr, this petition should also be granted.
33
available to the State.”). The government’s case for
death thus hinged on an aggravating factor—multiple
unadjudicated homicides—unrelated to the Greensboro
crime and not introduced by the government until the
second half of a bifurcated penalty trial. That prosecution tactic was highly prejudicial.
As this Court has recognized, evidence of unadjudicated murders is “the worst kind of bad evidence.”
Wong v. Belmontes, 558 U.S. 15, 26 (2009). First, it requires the defendant to respond to a separate murder
charge—or charges—in front of the same jury that has
just convicted him of capital murder. The government’s summation at the penalty stage stoked the resulting adverse inference, repeatedly connecting the
charged crime with the other unconfronted accusations,
claiming that death was warranted because Umaña
“had killed before.” See supra p. 11. Second, such evidence necessarily concerns offenses for which the defendant has not been tried or convicted. Here, the
criminal allegations that were the centerpiece of the
government’s case for death had never been tested before a jury. Worse, they were proffered through the
self-serving hearsay testimony of other suspects in the
crimes, who blamed Umaña under police pressure. Yet
Umaña was not permitted to test the truth of those lifeor-death allegations by cross-examining his accusers.
Thus, not only did the jury hear “‘the most powerful
imaginable aggravating evidence,’” Wong, 558 U.S. at
28, but it did so without the constitutional safeguard
devised especially to ensure that the truth or falsity of
such evidence could be brought to light. See Crawford,
541 U.S. at 66 (“The Framers would be astounded to
learn that ex parte testimony could be admitted against
a criminal defendant because it was elicited by ‘neutral’
government officers.”).
34
That is a profound error, the consequence of which
is that defendants will be executed based on adverse
testimony they had no opportunity to confront. Without this Court’s intervention, that will happen here.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted.
VINCENT J. BRUNKOW
ZANDRA L. LOPEZ
JANET C. TUNG
FEDERAL DEFENDERS OF
SAN DIEGO, INC.
225 Broadway, Suite 900
San Diego, CA 92101
DANIELLE SPINELLI
Counsel of Record
SONYA L. LEBSACK
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave., NW
Washington, DC 20006
(202) 663-6000
MALCOLM RAY HUNTER, JR.
[email protected]
P.O. Box 3018
BROOK HOPKINS
Chapel Hill, NC 27515
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
NOVEMBER 2014
APPENDICES
1a
APPENDIX A
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALEJANDRO ENRIQUE RAMIREZ UMAÑA,
a/k/a Wizard, a/k/a Lobo,
Defendant - Appellant.
Appeal from the United States District Court for the
Western District of North Carolina, at Charlotte. Robert
J. Conrad, Jr., District Judge. (3:08-cr-00134-RJC-2)
Argued: January 28, 2014
Decided: April 23, 2014
Before NIEMEYER, GREGORY, and AGEE, Circuit
Judges.
Affirmed by published opinion. Judge Niemeyer wrote
the majority opinion, in which Judge Agee joined.
Judge Gregory wrote a dissenting opinion.
* *
NIEMEYER, Circuit Judge:
*
Alejandro Enrique Ramirez Umaña shot and killed
two brothers, Ruben and Manuel Salinas, at point-blank
2a
range in a restaurant in Greensboro, North Carolina,
because Umaña perceived that the brothers had insulted Umaña’s gang, Mara Salvatrucha, commonly known
as MS-13. A jury convicted Umaña of all counts for
which he was charged, including two counts charging
him with murder in aid of racketeering, in violation of
18 U.S.C. § 1959(a)(1), and two counts charging him
with committing murder while using a firearm during
and in relation to a crime of violence, in violation of 18
U.S.C. § 924(c) and (j)(1). The convictions on those
charges subjected Umaña to a maximum sentence of
death.
Following the verdict of conviction, the same jury
returned a verdict that Umaña was death eligible on
the four capital counts, as provided in 18 U.S.C.
§§ 3591-3596. The jury found that two statutory aggravating factors applied: (1) that Umaña had created a
grave risk of death to one or more persons in addition
to each victim, and (2) that he had killed more than one
person in a single criminal episode.
Finally, in the sentence selection phase of trial, the
jury imposed the death penalty, finding that four additional nonstatutory aggravating factors applied: (1) that
Umaña had killed the two brothers to protect and
maintain the reputation of MS-13 and to advance his
position in that gang; (2) that Umaña had caused injury
and loss to the brothers’ family and friends; (3) that
Umaña had earlier intentionally committed several
murders in Los Angeles; and (4) that Umaña posed a
continuing and serious threat to the lives and safety of
others, as evidenced by his lack of remorse, his allegiance to MS-13, his lack of rehabilitation, and his pattern of violence. The jury also found several mitigating
factors. After weighing the aggravating and mitigating
factors, the jury imposed the death penalty.
3a
On appeal, Umaña challenges every phase of the
proceedings below. After carefully considering each of
Umaña’s arguments, we reject them and affirm the
convictions and sentence.
I
Umaña, who was born in El Salvador in the early
1980s, illegally entered the United States in 2004 to live
in Los Angeles. At the time, he had been a member of
the MS-13 gang for several years, having joined in 2001,
while he lived in El Salvador.
MS-13 was formed in Los Angeles in the 1980s by
immigrants from Central America, predominantly El
Salvador. To gain membership into MS-13, an individual must submit to a 13-second beating. The gang uses
violence and extortion to gain and control territory, and
for a member to build his reputation in MS-13, he has to
be ready to attack rival gang members or anyone else
who disrespects the gang. MS-13 punishes betrayal by
putting the “green light” on the member, which constitutes an order that he be targeted for death.
While Los Angeles continues to be the mecca of
MS-13 activity, MS-13 has become a transnational organization, with groups, or “cliques,” across the United
States, in Canada, and in Central America.
Umaña’s activities in Los Angeles
During the sentence selection phase of Umaña’s
trial, the government introduced evidence implicating
Umaña in several Los Angeles shootings: one on Fairfax Street on July 27, 2005, where two persons were
shot and killed, and one in Lemon Grove Park on September 28, 2005, where a group of four persons were
shot at and one was killed and two were injured.
4a
On the occasion of the Fairfax Street murders,
Umaña was in the passenger seat of a car with several
other MS-13 members. The car pulled up alongside two
males walking down the street, and the two groups began flashing gang signs at one another. The two males
on the street were graffiti artists, or “taggers,” and
they made hand gestures that were perceived as challenging MS-13. Some or all of Umaña’s group exited
the car to confront the taggers. There were conflicting
accounts about what happened next. Umaña’s fellow
MS-13 members claimed that Umaña shot the two taggers, but two civilian eye witnesses claimed that the
driver of the car shot them.
On the occasion of the Lemon Grove Park murder,
two men approached a group of four who had just finished playing basketball and were sitting on bleachers
in the park. Without a word, the two men took out
guns and opened fire on the group. One of the four
basketball players was killed, while two others were
wounded. The fourth, Freddie Gonzalez, who was apparently the target of the attack, escaped uninjured.
Several pieces of evidence linked Umaña to this murder. First, Gonzalez identified Umaña in a photo lineup
and confirmed the identification in court, although he
admitted to some uncertainty. Also, Umaña admitted
to driving the shooters to the basketball court, although
he denied being a shooter himself. Finally, ballistics
matched the gun used in the Fairfax Street murders
with the gun used in the Lemon Grove Park murder,
and there was no evidence that anyone but Umaña was
present at both crime scenes.
Umaña’s New York activities
Umaña left Los Angeles and, by the summer of
2007, was residing in New York. By this time, he had
5a
built up a substantial reputation within MS-13. One
witness recalled that Umaña, who had taken on the
moniker of “Wizard,” was treated by his fellow gang
members like he was “big time.”
In the fall of 2007, an MS-13 leader in New York directed Umaña to travel to Charlotte, North Carolina,
as the Charlotte MS-13 cliques had been experiencing
significant infighting. Because of his experience and
exposure to gang life in Los Angeles, Umaña was ordered to “set them straight” in North Carolina. This
was confirmed by a Charlotte-based MS-13 member
who stated that it was expected that Umaña would
“take control” because he knew “how to run a gang.”
Umaña’s North Carolina activities
When he arrived in North Carolina, Umaña convened a meeting, during which he instructed the MS-13
members as to how they should be extorting money,
selling drugs, and stealing cars. He inspected the gang
members’ guns; he emphasized to them the importance
of respect; and he told them to merge the Charlotte
cliques together. Over the course of the following
months, Umaña conducted numerous meetings with
MS-13 members in Charlotte.
On December 8, 2007, Umaña was in Greensboro,
North Carolina, having dinner with several fellow MS13 members at Las Jarochitas, a Mexican food restaurant. Also at the restaurant were Ruben and Manuel
Salinas, regulars at Las Jarochitas, who were eating
and drinking with several other men. The Salinas
brothers were not affiliated with any gang.
Umaña and his associates were sitting near the
jukebox, and they began selecting songs. This upset
Manuel Salinas, who liked to listen to “corrida,” a type
6a
of Mexican country music, whenever he visited Las Jarochitas. As one witness reported, the two groups then
began “arguing and kind of like pushing each other.”
Perhaps fearing that the situation was getting out of
hand, Manuel Salinas tried to calm things down by buying the MS-13 members a bucket of beers. The MS-13
members, however, rebuffed the peace offering, refusing to drink or even acknowledge the beers.
A concerned waitress asked the MS-13 members to
leave the restaurant. As they were filing out, the
groups were “exchanging words,” and Ruben Salinas
told the MS-13 members that he “wasn’t scared of
them.” The gang members responded that Ruben Salinas should not “mess with them” because “they were
from … MS.” Ruben retorted that the gang was “fake
to him.”
All of the MS-13 members left the restaurant except for Umaña, who stayed behind. Upon realizing
that Umaña was still in the restaurant, an MS-13 member named Spider came back inside. When the waitress
tried to pull Umaña to the door, Spider grabbed her
and told her not to touch him. It was at this point that
Umaña pulled out his gun and pointed it at Ruben and
Manuel, but he did not shoot right away. He held his
gun sideways, while Manuel and Ruben stood motionless. No one said anything. After some time elapsed,
perhaps as much as a minute, Umaña fired five shots at
the brothers. Ruben received a gunshot wound to the
chest, and Manuel was shot in the head. Both were
pronounced dead at the scene of the crime. A third individual was shot in the shoulder and survived.
Witnesses identified Umaña as the shooter, and
Umaña does not contest that he pulled the trigger.
7a
Immediately after the murders, Umaña’s group
contacted a fellow MS-13 member, who had been serving as a confidential informant, to help them get back to
Charlotte that night. The informant met Umaña and
the other gang members at an IHOP restaurant between Charlotte and Greensboro. Umaña switched
cars and rode with the informant back to Charlotte.
During the ride, he was cocking and uncocking his gun
and discussing its bullets. Their first stop was a nightclub and nearby taco stand outside of Charlotte, where
Umaña told the confidential informant to smell the gun,
because it smelled like gunpowder from being fired.
Umaña also told the informant that he was going to
“pee on [his] hands” to get rid of the gunpowder. Several other MS-13 members had congregated at the taco
restaurant. One MS-13 member later recounted Umaña’s explanation for why he had committed the murders—“[Umaña] said they insulted the MS-13. And he
was doing it not only because of him, because he was
doing it because of us, too.” Of the third victim, Umaña
lamented that he “didn’t kill that son of a bitch.” When
asked about the prospect of being pulled over by the
police with the murder weapon, he responded, as recorded on tape, that the officer would be on the wrong
end of his gun, as “she is always close by.”
Charlotte police arrested Umaña at an MS-13
member’s house on December 12, 2007. The police
found the murder weapon in the sofa where Umaña was
sitting. Umaña later told other MS-13 members that
the police were “lucky” because he had been “trying to
grab for his gun.”
Procedural history
While Umaña was being held in custody by North
Carolina authorities, several Los Angeles police detec-
8a
tives interrogated him about the shootings that had occurred in Los Angeles. Umaña denied committing
those murders, although he did admit to being present
or nearby when they occurred.
Two months later, a federal grand jury in Charlotte, in the Western District of North Carolina, indicted Umaña for the murders committed in Greensboro,
which is in the Middle District of North Carolina.
Umaña filed a motion to dismiss the indictment for improper venue, which the district court denied. He also
requested a hearing pursuant to Atkins v. Virginia, 536
U.S. 304 (2002), which forbids execution for mentally
retarded defendants. The court granted the Atkins
hearing and found that Umaña had failed to prove his
disability by a preponderance of the evidence.
While in prison awaiting trial, Umaña maintained
contact with MS-13 members. He wrote lengthy letters
expressing his continuing loyalty to the gang and his
hatred for his enemies. His letters also gave orders to
execute rivals and intimidate potential witnesses
against him. While the letters were encoded, the FBI
broke the code.
The case proceeded to trial. On the first day of jury
selection, U.S. Marshals frisked Umaña and discovered
that he had tied a four-inch metal blade (in a paper
sheath) to his penis. And when the confidential informant testified during trial, Umaña flashed MS-13 gang
signs with his hands and, as the informant was leaving,
said in Spanish, “[Y]our family’s going to pay you
mother—.” This threat took place in front of the jury.
The jury convicted Umaña on all counts. It found
him guilty of conspiring to conduct, or to participate in
the conduct of, the affairs of an enterprise affecting interstate commerce through a pattern of racketeering
9a
activity, in violation of 18 U.S.C. § 1962(d) (prohibiting
RICO conspiracy). It found that this RICO conspiracy
included the “willful, deliberate and premeditated murder” of the Salinas brothers, in violation of N.C. Gen.
Stat. § 14-17. The jury also found Umaña guilty of
murdering the Salinas brothers in aid of racketeering,
in violation of 18 U.S.C. § 1959(a)(1). Finally, the jury
found Umaña guilty of using a firearm in relation to a
crime of violence, resulting in the death of the Salinas
brothers, in violation of 18 U.S.C. § 924(c) and (j)(1).
The jury also found Umaña guilty of several lesser offenses not at issue here, including being an alien in possession of a firearm, robbery affecting interstate commerce, and witness tampering.
The government sought the death penalty for the
§ 1959 and § 924 counts. Accordingly, the district court
divided the trial into three phases—the first to determine guilt or innocence; the second to determine Umaña’s eligibility for the death penalty; and the third, if
Umaña were found death eligible, to select between the
death penalty and life imprisonment without the possibility of release.
After finding Umaña guilty, the jury found him eligible for the death penalty under the Federal Death
Penalty Act, 18 U.S.C. §§ 3591-3596. In addition to
finding that, during the commission of the crimes,
Umaña was of sufficient age and had a sufficiently culpable state of mind, it found that two statutory aggravating factors applied. First, it found that Umaña had
created a grave risk of death to one or more persons in
addition to each victim, and second, it found that he had
killed more than one person in a single criminal episode.
After the jury found Umaña eligible for the death
penalty, the court proceeded to the sentence selection
10a
phase, during which the government put on evidence to
prove four additional nonstatutory aggravating factors:
(1) that Umaña had killed the Salinas brothers to protect and maintain the reputation of MS-13 and to advance his position therein; (2) that Umaña had caused
injury and loss to the Salinas brothers’ family and
friends; (3) that Umaña had intentionally committed
several murders in Los Angeles; and (4) that Umaña
posed a continuing and serious threat to the lives and
safety of others, as evidenced by his lack of remorse,
his allegiance to MS-13, his lack of rehabilitation, and
his pattern of violence. The jury found the existence of
all four aggravating factors unanimously and beyond a
reasonable doubt. They also considered the evidence
presented by Umaña in mitigation, which consisted
primarily of (1) the effects that Umaña’s upbringing
had on his culpability; (2) videos of his family and
friends; and (3) testimony about safety precautions that
would be in place should Umaña be sentenced to life
imprisonment. All or some of the jury members found
that Umaña had proved various mitigating factors by a
preponderance of the evidence. In particular, they
found that the murder occurred during an emotionally
charged argument and that the murder occurred as a
result of Umaña’s indoctrination into the ways and
thinking of MS-13. After weighing the aggravating and
mitigating circumstances, the jury sentenced Umaña to
death.
This appeal followed, raising numerous challenges,
as discussed herein.
II
Umaña challenges first the venue of his trial in the
Western District of North Carolina. He contends that
“venue on the capital counts [Counts 22-25] was proper
11a
only in the Middle District of North Carolina [in
Greensboro], where the killings occurred because ‘murder’ was the only essential ‘conduct’ element of the
charged offenses (violations of 18 U.S.C. § 1959 and
§§ 924(c) & (j)(1)),” and that venue was not proper in
the Western District of North Carolina, where he was
tried. He argues that committing murder “for the purpose of … maintaining or increasing position in an enterprise engaged in racketeering activity,” as punished
by § 1959, has only one conduct element—that of committing murder—and that the element of maintaining
or increasing position in a racketeering enterprise is a
mens rea element. He points out that under established venue jurisprudence, a mens rea element does
not contribute to determining the locus delicti of the
crime, i.e., where it was committed for venue purposes.
See United States v. Jefferson, 674 F.3d 332, 366-68 &
n.46 (4th Cir. 2012); United States v. Oceanpro Indus.,
Ltd., 674 F.3d 323, 329 (4th Cir. 2012). He further argues that venue was improper for the trial of the two
§ 924 counts because those counts depended on the two
§ 1959 counts.
The government contends that venue in the Western District was proper because the murders were
committed by Umaña in “connection to the ‘racketeering enterprise’ and RICO conspiracy,” which were
“continuing offense[s] centered in Charlotte,” in the
Western District. It argues that just as murder was an
essential conduct element, so too was the racketeering
activity with which the murders were necessarily connected, justifying venue in either the Western or Middle Districts.
Both the Constitution and the statutes implementing it require that criminal trials be conducted where
the crime was “committed.” See U.S. Const. art. III,
12a
§ 2, cl. 3; U.S. Const. amend. VI; 18 U.S.C. §§ 3235-3237;
Fed. R. Crim. P. 18. The place where a crime is committed—the locus delicti—“must be determined from
the nature of the crime alleged and the location of the
act or acts constituting it.” United States v. RodriguezMoreno, 526 U.S. 275, 279 (1999) (quoting United States
v. Cabrales, 524 U.S. 1, 6-7 (1998)). Thus, to determine
venue, we must first “identify the conduct constituting
the offense” and then “discern the location of the commission of the criminal acts.” Id. The location of the
criminal acts is determinative. See Jefferson, 674 F.3d
at 365; Oceanpro, 674 F.3d at 328; United States v.
Bowens, 224 F.3d 302, 311 (4th Cir. 2000). Of course, if
the criminal conduct spans multiple districts, the crime
may be tried in any district in which at least one conduct element was committed. See 18 U.S.C. § 3237(a);
Rodriguez-Moreno, 526 U.S. at 281.
Counts 22 and 24 of the indictment charged Umaña
with the murders of Ruben Salinas and his brother,
Manuel Salinas, in aid of racketeering activity, in violation of 18 U.S.C. § 1959(a)(1), and venue for trial of
those offenses lay where the essential conduct elements
of the § 1959 offense were committed.
In order to establish murder in aid of racketeering
activity under § 1959, the government must show:
(1) that there was an enterprise engaged in
racketeering activity;
(2) that the enterprise’s activities affected interstate commerce;
(3) that the defendant committed murder; and
(4) that the defendant, in committing murder,
acted in response to payment or a promise
of payment by the enterprise or “for the
13a
purpose of gaining entrance to or maintaining or increasing position in an enterprise.”
18 U.S.C. § 1959(a)(1); see also United States v. Fiel, 35
F.3d 997, 1003 (4th Cir. 1994).
Umaña argues that the only conduct element of the
§ 1959 offense was the murder itself. He characterizes
the language linking the murder to the racketeering
enterprise—i.e., “for the purpose of … maintaining or
increasing position in an enterprise engaged in racketeering activity”—as merely descriptive of the crime’s
requisite mens rea, which cannot determine where the
crime was committed for venue purposes.
See
Oceanpro, 674 F.3d at 329.
We decline to read that element so narrowly. We
think that “for the purpose of … maintaining or increasing position in an enterprise” defines a motive element
that includes a requirement that the defendant have
interacted with the enterprise with respect to his purpose of bolstering his position in that enterprise. Such
activity could occur before commission of a violent
crime covered by the statute—for example, if a mafia
boss instructed a member to commit murder or else be
cast out of the organization—or after commission of a
violent crime—for example, if the member returned to
mafia headquarters to boast about his exploits with a
mind toward advancement.
Two reasons underlie our interpretation. First, we
think this reading avoids the illogical—and possibly unconstitutional—result that § 1959 would criminalize a
murder committed with a secret intent to join a gang
where the murderer has absolutely no prior connection
with the gang itself. Congress made clear, when enacting § 1959, that the offense was aimed at eliminating
violent crime “committed as an integral part of an or-
14a
ganized crime operation.” S. Rep. No. 98-225, at 305
(1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3485 (emphasis added). And a physical manifestation of purpose
is necessary to ensure that the act is actually carried
out to further the enterprise’s goals.
Second, the statutory context suggests that the
“for the purpose of” prong requires a manifest quid pro
quo between the member and the gang. The earlier,
parallel portion of the statute criminalizes violent crime
conducted “as consideration for the receipt of” or “as
consideration for a promise or agreement to pay … anything of pecuniary value.” 18 U.S.C. § 1959(a). This
portion of the statute clearly indicates that there must
be a reciprocal arrangement between the enterprise
and the individual, and we believe it sensible to read
the “for the purpose of” language similarly.
At bottom, we hold that § 1959(a)(1) includes as an
element an objective, physical act that links the defendant with the enterprise with respect to the underlying violent crime and that this element is a conduct
element supporting venue.
In this case, Umaña’s actions in Charlotte were sufficient to satisfy this conduct element. Umaña was sent
to Charlotte with orders to shape up the North Carolina cliques. Upon arriving in Charlotte, he instructed
the local MS-13 members at length about weapons and
ammunition. He passed around his own gun. He discussed maintaining respect. One witness, who was at
the initial Charlotte meeting, testified that respect
“was everything” to Umaña. And after killing the Salinas brothers for their failure to respect his gang,
Umaña immediately returned to Charlotte, where he
boasted to his fellow MS-13 members about the murders. He told them that he had killed the Salinas
15a
brothers because they had insulted MS-13 and that he
had killed them for his fellow gang members. These
objective manifestations of Umaña’s purpose to further
his position in the enterprise were sufficient to support
venue in the Western District of North Carolina for the
§ 1959 prosecution.
In Counts 23 and 25, Umaña was charged and tried
for violations of 18 U.S.C. § 924(c) and (j)(1). The indictment in those counts alleged that Umaña used a
firearm “during and in relation to a crime of violence,
that is: conspiracy to participate in a racketeering enterprise [18 U.S.C. § 1962] and murder in aid of racketeering [18 U.S.C. § 1959],” resulting in the unlawful killing of Ruben and Manuel Salinas. Venue for § 924(c)
prosecutions is appropriate wherever the underlying
crime of violence took place. Rodriguez-Moreno, 526
U.S. at 281.
Umaña does not dispute that venue was proper in
the Western District of North Carolina for the underlying § 1962 prosecution and, as we are holding, venue
was also appropriate there for the § 1959 prosecution.
Thus, regardless of which predicate crime of violence
the jury relied on, venue for the § 924(c) counts was appropriate in the Western District.
III
Umaña next contends that his convictions on
Counts 22 and 24 for murder in aid of racketeering activity under 18 U.S.C. § 1959(a)(1) punished conduct
that “is a quintessential, noneconomic, local activity
that lies beyond Congress’s authority to regulate under
the Commerce Clause,” much like the activity regulated in the Violence Against Women Act, which the Supreme Court struck down in United States v. Morrison,
16a
529 U.S. 598 (2000). Moreover, he asserts, requiring
that the murder be committed to maintain or further
one’s status in “a street gang fails to change its noneconomic nature.” And because his convictions on Counts
23 and 25 under § 924(c) were predicated on his § 1959
convictions, Umaña reasons that they too exceeded the
government’s Commerce Clause authority. Accordingly, he argues that his convictions on Counts 22 through
25 must be reversed.
Because Umaña failed to present this argument to
the district court, we review it for plain error. See
United States v. Forrest, 429 F.3d 73, 77 (4th Cir. 2005)
(conducting a plain error review of a Commerce Clause
challenge that was not raised before the district court).
Article I, § 8, of the U.S. Constitution authorizes
Congress to make laws as necessary to regulate commerce among the States so long as it has a “‘rational basis’ … for … concluding” that the prohibited activities,
“taken in the aggregate, substantially affect interstate
commerce.” Gonzalez v. Raich, 545 U.S. 1, 22 (2005).
Section 1959(a) punishes violent crimes, including
murder, committed “for the purpose of … maintaining
or increasing position in an enterprise engaged in racketeering activity,” with the term “enterprise” defined
to include “any partnership, corporation, association, or
other legal entity … which is engaged in, or the activities of which affect, interstate or foreign commerce.”
18 U.S.C. § 1959(a), (b)(2). The question therefore is
whether Congress could rationally have concluded that
intrastate acts of violence, such as murder, committed
for the purpose of maintaining or increasing one’s status in an interstate racketeering enterprise, would substantially affect the interstate activities of that enterprise. We conclude that it could have.
17a
We find it wholly reasonable to believe that members of a criminal enterprise might engage in violence
to solidify their status in the organization or rise in the
ranks of its leadership, and that by doing so, they would
enhance the power and reach of the racketeering enterprise itself. Indeed, the circumstances of the present case provide a convenient illustration. Because of
Umaña’s substantial reputation in MS-13, which he
seems to have built up partly through acts of violence
in Los Angeles, MS-13 leadership—through international telephone calls—sent him from New York to
North Carolina to instruct the cliques there on how
more effectively to deal drugs, steal cars, and extort
money. Congress could rationally have concluded that
proscribing reputation-enhancing violence committed
by members of a criminal enterprise would disrupt the
interstate commerce that the enterprise itself engages
in. Accord United States v. Crenshaw, 359 F.3d 977,
986 (8th Cir. 2004) (upholding the constitutionality of
§ 1959 under the Commerce Clause, noting that “[i]t
seems … clear that criminal enterprises use violence or
the threat of violence in connection with their commercial activities”); see also United States v. Nascimento,
491 F.3d 25, 43 (1st Cir. 2007) (“Given the obvious ties
between organized violence and racketeering activity—
the former is a frequent concomitant of the latter—we
defer to Congress’s rational judgment, as part of its effort to crack down on racketeering enterprises, to enact
a statute that targeted organized violence”). Indeed,
Congress reached just such a conclusion when it observed that murders, assaults, and other crimes proscribed by § 1959 constituted an “integral aspect of
membership in an enterprise engaged in racketeering
activity.” S. Rep. No. 98-225, at 304, reprinted in 1984
U.S.C.C.A.N. at 3483.
18a
Moreover, § 1959 includes a jurisdictional element
that limits its reach to activities connected with enterprises “engaged in” or whose activities “affect” interstate commerce, thereby justifying its constitutionality
under the Commerce Clause. 18 U.S.C. § 1959(a),
(b)(2); see also United States v. Gibert, 677 F.3d 613, 624
(4th Cir. 2012). This jurisdictional element distinguishes § 1959 from the Violence Against Women Act
struck down in Morrison. 529 U.S. at 613. In Morrison, the Supreme Court explicitly noted the lack of a
limiting jurisdictional element that would have confined
the statute to those activities actually affecting interstate commerce. Id. (noting that the Gun-Free School
Zones Act, which was struck down in United States v.
Lopez, 514 U.S. 549 (1995), and the Violence Against
Women Act at issue in Morrison “contain[ed] no jurisdictional element establishing that the federal cause of
action is in pursuance of Congress’ power to regulate
interstate commerce”). But § 1959 does have a limiting
jurisdictional element that confines its reach to crimes
that affect interstate commerce.
Umaña argues further that the application of § 1959
to his particular circumstances is unconstitutional because “the murder here had no effect on interstate
commerce, was non-commercial in nature, and was unrelated to organized interstate trafficking efforts in
drugs or other contraband.” But such an argument is of
no consequence to the Commerce Clause analysis,
which does not focus on whether particular conduct under the statute had an impact on interstate commerce,
but rather on whether “the class of acts proscribed had
such an impact.” Gibert, 677 F.3d at 627; see also
Raich, 545 U.S. at 17 (“[W]hen a general regulatory
statute bears a substantial relation to commerce, the de
minimis character of individual instances arising under
19a
that statute is of no consequence” (quoting Lopez, 514
U.S. at 558) (internal quotation marks omitted)); United States v. Gould, 568 F.3d 459, 475 (4th Cir. 2009);
United States v. Williams, 342 F.3d 350, 355 (4th Cir.
2003).
Accordingly, we find no error, let alone plain error,
and therefore we reject Umaña’s Commerce Clause
challenge.
IV
Umaña contends that the district court abused its
discretion in refusing to excuse Jurors 286 and 119 on
account of their personal bias. He argues that Juror
286 was biased based on a past life experience with respect to a crime committed against her brother and
that Juror 119 was biased as indicated by the answers
she gave about whether she could meaningfully consider life imprisonment, in lieu of death, upon a finding of
guilt on the charges in this case.
We review the district court’s decisions to seat
these jurors for abuse of discretion, Poynter v. Ratcliff,
874 F.2d 219, 222 (4th Cir. 1989), and we will find abuse
only “where a per se rule of disqualification applies” or
“where the [trial] court ‘demonstrate[d] a clear disregard for the actual bias’ of the juror,” United States v.
Fulks, 454 F.3d 410, 432 (4th Cir. 2006) (quoting United
States v. Turner, 389 F.3d 111, 115 (4th Cir. 2004)).
A
Juror 286 recounted during voir dire that more
than 30 years earlier, her brother had been the victim
of an attempted murder; that the assailant received a
short sentence; and that, after release, the assailant
committed murder and then suicide. Based on this life
20a
experience and on Juror 286’s answers during voir dire,
Umaña argues that the district court should have found
that Juror 286 was actually biased or that, based solely
on her life experience, she was in any event impliedly
biased.
During voir dire, the prosecutor asked Juror 286
several questions about her ability to dispense penalties impartially:
Q: And are you able to keep an open mind until you’ve heard the evidence to make [the
decision between life in prison and the
death penalty] together with the other jurors?
A: I would like to think so. I mean, I don’t
know anything about the case.
Q: And that’s the point. But you haven’t
heard the evidence, so are you able to keep
an open mind and consider both options at
the conclusion of the evidence?
A: I think so.
* * *
Q: And given the information that you shared
about the tragedy with your brother … ,
are you able to come into this courtroom
and consider only the facts and evidence
that are presented in this case in making
your decision?
A: I hope that I can. I mean, I can’t forget
those … experiences that I’ve had. … I
would hope, and I think that I would look
at the facts of this case.
*
*
*
21a
Q: All right. And so as you sit here today …
until you’ve heard all the facts in evidence
in this case, you would be able to fairly consider both potential punishments; life imprisonment without parole and the death
penalty?
A: Yes.
Umaña’s counsel followed up on Juror 286’s answers with the following inquiry:
Q: Does [your frustration with how your
brother’s case was handled] come into play
now, if you’re a juror in a case like this,
that involves two charges of murder?
A: I don’t know if it would or not, to be honest.
I do have strong feelings about it. You
know, the sentence—the sentence to me
did not—it was not justified, based on the
circumstances and what happened. And
that person, because he didn’t have a sufficient sentence, I think, initially, went on to
do additional murder and suicide. And
yeah, I do have a problem getting past
that.
Then, after Umaña’s counsel explained to Juror 286
that, upon a finding of guilt for murder, there would be
only “two options on the table”—life without the possibility of release and death—he questioned her as follows:
Q: Knowing that, does your attitude about
your frustration with the judicial system
and the sentence that that assailant of your
brother’s got, how—can you tell us whether that would be an issue or affect you?
22a
A: I think it’s a bit different than the situation
with my brother. Because in that instance
I just didn’t think that there was sufficient
punishment that fit the crime. In this case
you’re looking at the death penalty, or as
you’re telling me, someone who would be in
prison the rest of their life. It’s different,
and I hope that I would see that.
* * *
Q: Are you saying then, that … you would
consider equally, or give fair consideration
to both types of sentences? In other words,
that you would think that either death or
life without parole would be considered as
sufficient sentences for those crimes?
A: I think depending on the circumstances and
the evidence.
Q: … [W]ould you meaningfully consider both
of these sentencing options in the sentencing phase of this trial?
A: Yes. Yes.
* * *
Q: [D]o you think that the experience with
what happened to your brother’s attacker
and everything, would have any impact on
your ability to be a fair judge on the facts,
as far as … guilty versus not guilty?
A: … I would hope it would not enter into my
decision, but I still have that experience.
Q: … [T]he defendant has the right, as does
the government, to have a jury of people
who are fair and impartial and open-
23a
minded. And I guess, do you feel that you
are one of those people right for this case?
A: I don’t know if I can say 100 percent. I really don’t.
At that point, the district judge intervened to describe
to Juror 286 the presumption of innocence and to explain that the government bears the burden of proof.
The judge then asked the following questions:
Q: Now, is there anything about your life experience that keeps you from understanding those principles and agreeing to apply
them in this case?
A: I understand the principles entirely. And I
hope that I could, you know, … do the job
that’s requested. I just … have these
things in my experience that I don’t know
whether they would prevent me from doing
the job correctly or not.
Q: Do you agree with those principles?
A: Yes, I do.
* * *
Q: And is there anything about your past experience that would prevent you from
meaningfully participating in that process
[of determining the penalty options]?
A: No, I don’t think so.
The judge then declined to excuse Juror 286.
Based on Juror 286’s answers, Umaña argues that
Juror 286 displayed actual bias because she “remained
equivocal regarding whether the circumstances surrounding the attempt on her brother’s life would affect
24a
her ability to keep an open mind and be a fair and impartial juror during the guilt/innocence phase.” Thus,
he contends that there remained uncertainty after voir
dire “about whether she could actually apply [the presumption of innocence and proof beyond a reasonable
doubt] in light of her past experiences.” He suggests
that United States v. Thompson, 744 F.2d 1065 (4th Cir.
1984), required a finding that Juror 286 was actually
biased.
In Thompson, one of the jurors notified the judge
during trial that a piece of evidence had “moved [him]
quite heavily.” 744 F.2d at 1067. When the judge told
the juror that he wanted to make sure that the juror
still had an open mind, the juror responded, “I don’t
think that I do. … I am not sure that I could be totally
fair. I would try to be as much as I could, but I am just
not sure I could be totally fair.” Id. (emphasis added).
After denying a motion for a mistrial, the judge asked
the juror if he could keep an open mind and maintain
the presumption of innocence, and the juror responded,
“I will try. I am not sure, your Honor.” Id. at 1067-68.
We found that the trial court had abused its discretion
by declining to excuse the juror, and we held that “after
[the juror] gave an equivocal response to repeated
questions about his ability to proceed with an open
mind … the trial court should have asked for an affirmative response.” Id.
The circumstances in Thompson, however, were
different in kind and effect from those here. In Thompson, the juror had suggested that he was unable to be
fair. When asked whether he had an open mind, the
juror said, “I don’t think that I do.” By contrast, Juror
286 left the court with the opposite message, suggesting that she “would like to think” that she could keep an
open mind. Moreover, when the judge asked Juror 286
25a
whether she agreed with the basic constitutional principles relating to the presumption of innocence and the
government’s burden of proof, she said that she did.
She also told the judge that her past experiences would
not prevent her from “meaningfully participating in
[the sentencing] process.” To be sure, Juror 286 stated
that she could not be 100% sure about how she would
conduct herself, but nonetheless she repeatedly stated
that she thought she could keep an open mind and “look
at the facts of this case.”
We similarly distinguished Thompson in United
States v. Hager, 721 F.3d 167 (4th Cir. 2013), where a
juror expressed some equivocation about whether he
could be impartial. In Hager, the judge interrogated
the juror at length, asking, for example, whether the
juror could “give effect to those two instructions [regarding the presumption of innocence and burden of
proof],” and the juror answered, as did Juror 286 in this
case, “Yes, I would try.” 721 F.3d at 190-91. The court
followed up this inquiry by asking, “[I]s there any reason why you wouldn’t succeed?” to which the juror responded, “No, I wouldn’t think [so].” Id. at 191. The
Hager court found that the judge had not abused his
discretion by seating the juror, distinguishing the circumstances from Thompson in this way:
Although Juror 144 and the juror in Thompson
both initially stated only that they would try to
be fair, the district court here followed up by
asking if there was any reason that the juror
could not be fair. And each time that question
was posed, Juror 144 said that there was not.
The district court in Thompson, however, failed
to solicit such a response.
26a
Id. at 192; see also United States v. Capers, 61 F.3d
1100, 1104-05 (4th Cir. 1995) (finding no abuse of discretion where a trial judge refused to excuse a juror who
stated that he “might favor the government”).
We conclude that the district judge in the present
case did not abuse his discretion by declining to find
that Juror 286 was actually biased. A juror need not
express unflinching certainty for a trial judge to determine that she will be able to remain impartial. See,
e.g., Hager, 721 F.3d at 191-92. Moreover, in this case,
the judge took care by repeatedly asking, in followup
questions, whether Juror 286 could be fair and impartial. Juror 286 affirmed without qualification that she
agreed with the principles that defendants are presumed innocent and that the government has the burden of proof, and she repeatedly affirmed that she
would be able to consider equally the two penalty options of life in prison and the death sentence.
Umaña argues further that despite the answers
given by Juror 286, her life experiences alone should
have prompted the trial court to conclude that she was
impliedly biased.
“[T]he doctrine of implied bias is limited in application to those extreme situations where the relationship
between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average
person could remain impartial in his deliberations under the circumstances.” Person v. Miller, 854 F.2d 656,
664 (4th Cir. 1988). Implied bias might arise where
there is “a revelation that the juror is an actual employee of the prosecuting agency, that the juror is a
close relative of one of the participants in the trial or
the criminal transaction, or that the juror was a witness
or somehow involved in the criminal transaction.”
27a
Smith v. Phillips, 455 U.S. 209, 222 (1982) (O’Connor,
J., concurring).
We conclude that Juror 286’s experience 30 years
ago was sufficiently remote and insufficiently prejudicial to impute bias to her. We have held that “it is generally within a trial court’s discretion to qualify a juror
whose close relative was a victim of a crime similar to
that with which a defendant is charged, [and so] such a
circumstance is not, standing alone, sufficiently ‘extreme’ to warrant a finding of implied bias.” Fulks, 454
F.3d at 432-33 (citation omitted). Likewise here, we
conclude that it was within the district court’s discretion to qualify Juror 286.
Umaña also argues that the views Juror 286 expressed about law enforcement evidenced actual bias,
as indicated by the following exchange during voir dire:
Q: [A]re you going to treat civilians and law
enforcement, you’re going to be able to
evaluate their testimony and weigh it
equally?
A: Um, I think so. But in all honesty, I do have
to say that I do have a positive feeling towards them, police officers, detectives and
so forth.
Q
* * *
[S]o you would be able to judge fairly the
testimony of a police officer, the same way
you would a civilian witness in this case?
A: I have to answer again in all honesty that I
hope that I would be able to. But also as I
say, I do support and see law enforcement
in a favorable light.
28a
* * *
Q: [W]ould you follow that same instruction
and use the same standard in evaluating
the credibility of each type of witness?
A: I think so. I’ve never done it before, as I
say. I just have to say that I would hope
and I would think that I would.
Based on these answers, Umaña contends that “Juror
286 was equivocal about whether her beliefs about law
enforcement would interfere with her duty to treat all
witnesses equally.”
Because Umaña did not, during voir dire, object to
Juror 286 on this ground, we review this issue under
the plain error standard. See Fed. R. Crim. P. 52(b);
United States v. Olano, 507 U.S. 725, 732-34 (1993).
Although “bias in favor of law enforcement officials
[i]s inappropriate,” United States v. Lancaster, 96 F.3d
734, 743 (4th Cir. 1996) (en banc), we conclude that the
district court did not err in failing to find actual bias
based on Juror 286’s statement that she had “positive
feelings” about law enforcement, especially where she
went on to affirm (albeit in her cautious fashion) that
she would use the same standard in evaluating every
witness’s credibility. See Capers, 61 F.3d at 1105 (no
abuse of discretion where juror said he “might” favor
the government). A juror’s generally favorable impression of law enforcement does not necessarily
amount to bias any more than does a juror’s personal
association with law enforcement. See United States v.
Larouche, 896 F.2d 815, 830 (4th Cir. 1990). Based on
our review of the record, we conclude that the district
court’s ruling was not in error.
29a
B
Umaña contends that Juror 119 was also biased insofar as she did not confirm during voir dire that she
would “meaningfully consider life imprisonment upon a
finding of guilt of the charged offenses.”
On Juror 119’s questionnaire, she gave seemingly
contradictory answers with respect to whether she
would consider life in prison for an individual convicted
of racketeering offenses. But she explained at voir dire
that she had been confused by the wording of the question. More importantly, she expressed unhesitatingly
that she would consider both life in prison and the
death sentence:
Q: [T]he question I have for you is whether
you would consider those both—those two
options?
A: Oh, yes.
Q: Or automatically choose one over the both?
A: No. No.
Q: You would consider both?
A: I would consider both.
Later in voir dire, Juror 119 did say that she would
“lean heavily towards the death penalty for … intentional killing.” When the district judge followed up on
this statement, Juror 119 initially expressed some
equivocation, stating that she was “not sure” whether
she could keep an open mind about the sentencing options. The judge continued to probe Juror 119:
Q: Let me ask you this question: I’m not asking you to tell me what your decision will
be. What I’m asking you is, are you willing
30a
in good faith, to go through the process of
considering and weigh both options?
A: Yes.
Q: As part of that, would you be willing to
consider and weigh the aggravating factors
presented by the government and the mitigating factors presented by the defendant?
A: Yes.
Q: Would you be able to follow the Court’s instructions on those points?
A: Yes. I would have to.
The judge concluded that Juror 119 “could in good faith
weigh both options.”
We conclude that the judge did not abuse his discretion. In making his judgment, he followed the instructions from Hager precisely, following up with a
series of shorter, simpler questions when the juror
manifested some initial equivocation. The juror answered these questions unambiguously, making clear
that she was not “irrevocably committed to imposing
the death penalty.” United States v. Caro, 597 F.3d
608, 615 (4th Cir. 2010).
As we have previously noted, a juror’s mind need
not be a blank slate. See United States v. Jones, 716
F.3d 851, 857 (4th Cir. 2013) (“Because jurors will have
opinions from their life experiences, it would be impractical for the Sixth Amendment to require that each juror’s mind be a tabula rasa”). “[I]f a district court
views juror assurances of continued impartiality to be
credible, the court may rely upon such assurances in
deciding whether a defendant has satisfied the burden
of proving actual prejudice.” Id. (quoting United States
31a
v. Corrado, 304 F.3d 593, 603 (6th Cir. 2002)). The
judge in the present case acted within his discretion in
crediting Juror 119’s assurances that she could follow
the law and consider all sentencing options.
V
During the third phase of trial—the sentence selection phase, during which the jury decided whether to
impose life imprisonment without the possibility of release or the death penalty—the government sought to
prove that Umaña had committed several murders in
Los Angeles in 2005. To that end, it introduced into evidence the transcript of an interrogation of Umaña,
conducted by Los Angeles police detectives while he
was in state custody in North Carolina. During the interrogation, Umaña placed himself at the two scenes of
the Los Angeles murders, although he denied actually
committing the murders. Even so, the evidence helped
the government implicate Umaña in the murders because no evidence indicated that anyone but Umaña
was present at the two locations, and the same gun was
used to commit all of the murders.
Challenging the introduction of the transcript,
Umaña contends that the statements he made during
the interview were obtained in violation of his Miranda
rights and, in any event, were given involuntarily, in
violation of the Fifth Amendment. He bases his argument on the fact that during the interview, the Los Angeles detectives repeatedly told him that his statements would not “affect” the North Carolina case and
that his statements would not “cost” him anything,
when in fact they were used against him in this case.
As to his Miranda claim, the record shows that after the Los Angeles detectives read Umaña a Miranda
32a
warning in Spanish, they followed up with questions to
ensure that he understood, again speaking to him in
Spanish:
Detective: Do you understand what I’m saying?
Umaña:
Yes.
Detective: Do you want to talk about, uh, what we
want to talk about here of things that
happened in Los Angeles … freely?
Umaña:
I already told you, let’s see about it.
Detective: Okay.
Umaña:
Yes.
Detective: Yes? Okay. …
Umaña:
You will be explaining more things.
The detective who conducted this interview later testified that he thought that Umaña understood his right
to remain silent and intended to waive that right. The
district court found the officer to be credible and that
Umaña’s response of “Yes,” plus his subsequent willingness to answer questions, indicated that he did indeed intend to waive his Miranda rights and speak
with the detectives.
We agree. “To effectuate a waiver of one’s Miranda rights, a suspect need not utter any particular
words.” Burket v. Angelone, 208 F.3d 172, 198 (4th Cir.
2000). A suspect impliedly waives his Miranda rights
when he acknowledges that he understands the Miranda warning and then subsequently is willing to answer
questions. See United States v. Frankson, 83 F.3d 79,
82 (4th Cir. 1996). That is precisely what happened in
this case.
33a
Umaña contends that, in any event, his statements
were extracted involuntarily, in violation of his Fifth
Amendment rights, because the Los Angeles detectives
said that Umaña’s statements would not “cost” him anything or “affect” him. He identifies 10 such comments
that occurred over the course of a two-and-one-half
hour interview. For example, when asking about the
Fairfax Street murders, one detective stated: “Why
don’t we go ahead and clear up everything in the past
that you’ve done in Los Angeles. It doesn’t cost you
anything.” And, referring to the North Carolina investigation, a detective stated: “We don’t … want to affect
the case here at all.”
To determine whether a statement or confession
was obtained involuntarily, in violation of the Fifth
Amendment, “[t]he proper inquiry ‘is whether the defendant’s will has been overborne or his capacity for
self-determination critically impaired.’” United States
v. Braxton, 112 F.3d 777, 780 (4th Cir. 1997) (en banc)
(quoting United States v. Pelton, 835 F.2d 1067, 1071
(4th Cir. 1987) (internal quotation marks omitted)). To
make this determination, we consider “the totality of
the circumstances, including the characteristics of the
defendant, the setting of the interview, and the details
of the interrogation.” Pelton, 835 F.2d at 1071.
We have consistently declined to hold categorically
that a suspect’s statements are involuntary simply because police deceptively highlight the positive aspects
of confession. For example, in United States v. Whitfield, 695 F.3d 288 (4th Cir. 2012), we refused to find a
confession involuntary where the police officers told the
suspect that by talking to them he “would do ‘nothing
but help[] [himself].’” Id. at 303 n.8 (alterations in original). Similarly, in Rose v. Lee, 252 F.3d 676 (4th Cir.
2001), we held that “the cryptic promise that ‘things
34a
would go easier’ on [the suspect] if he confessed [did
not] amount[] to unconstitutional coercion.” Id. at 686;
see also United States v. Rutledge, 900 F.2d 1127, 1128,
1131 (7th Cir. 1990) (finding that the statement “all cooperation is helpful” was the sort of “minor fraud that
the cases allow” and did not make subsequent statements involuntary). “The mere existence of threats,
violence, implied promises, improper influence, or other
coercive police activity … does not automatically render a confession involuntary.” Braxton, 112 F.3d at
780. Rather, we must look at the totality of the circumstances to see if Umaña was not acting of his own volition.
Considering the entirety of the interrogation, we
conclude that Umaña’s statements were made voluntarily. While the detectives’ statements may have been
misleading, they never amounted to an outright promise that nothing Umaña said would ever be used against
him. Rather, they were akin to the cryptic encouragement we allowed in Whitfield and Rose. See also Illinois v. Perkins, 496 U.S. 292, 297 (1990) (“Ploys to mislead a suspect or lull him into a false sense of security
that do not rise to the level of compulsion or coercion to
speak are not within Miranda’s concerns”).
Moreover, Umaña’s statements and behavior during the interrogation belie any notion that he thought
his statements could not be used against him. When
the detectives were pushing him to confess to the Fairfax Street murders, he observed that “later on you’re
going to come to me with another case,” obviously indicating that he knew his words could be used against
him. And despite the detectives’ suggestions that confessing would not “cost” him anything, Umaña never
did so. His most significant “confessions” were to admit to being in the car during the Fairfax Street mur-
35a
ders and dropping off the shooters in Lemon Grove
Park. But he never admitted to committing any of the
murders. To the contrary, throughout the interrogation, Umaña’s statements were evasive and misleading.
For example, when an officer asked, “[W]ho fired at the
two dead persons?,” Umaña first responded, “I don’t
know that,” and then, “Look … perhaps my hands, perhaps someone else’s hands, perhaps Negro’s hands,
perhaps Chipie’s hands.” At one point, he began rapping an MS-13 song to deflect the focus of the interview. Umaña had experience in prior police interrogations, and in this case he was given a Miranda warning
and acknowledged that he understood it. We have little
doubt that Umaña knew what he was doing as he
played a cat-and-mouse game with detectives.
At bottom, we conclude that there simply was no
evidence that Umaña thought his statements would not
be used against him, and we decline to conclude that
any violation of his Fifth Amendment rights against
self-incrimination occurred.
VI
During the sentence selection phase of trial—again
in connection with the Los Angeles murders—the district court allowed the government to introduce hearsay statements of MS-13 members accusing Umaña of
committing the murders. Specifically, the court allowed detectives to testify at trial about their interviews with Luis Ramos, Luis Rivera, and Rene Arevalo. The court also allowed the government to introduce the transcripts of the interviews with Rivera and
Arevalo.
Umaña objected to the evidence on the grounds
that it (1) violated his right to confrontation under the
36a
Sixth Amendment and (2) constituted unreliable hearsay. The district court overruled the objections, holding that the Confrontation Clause does not apply to the
sentence selection phase of capital sentencing and that
the hearsay statements bore sufficient indicia of reliability and trustworthiness to be admissible during sentencing. Umaña now contends that the district court
erred on both counts. We address each, seriatim.
A
Umaña argues that “it is clear from the Sixth
Amendment’s text and history, the Eighth Amendment, and the statutory requirements of the [Federal
Death Penalty Act] that the right to confrontation applies throughout the sentencing phase of a federal
death penalty case.” Recognizing that the Sixth
Amendment has traditionally not been applied during
sentencing, he argues that the death penalty is qualitatively different from other punishments and that application of the Confrontation Clause would enhance reliability in the determination that death is the appropriate punishment.
Courts have long held that the right to confrontation does not apply at sentencing, even in capital cases.
In Williams v. New York, 337 U.S. 241 (1949), a state
judge imposed the death penalty on a defendant based
on (1) the evidence presented to the jury at trial, (2)
“additional information obtained through the court’s
Probation Department,” and (3) information obtained
“through other sources,” as authorized by state law.
Id. at 242-43 (internal quotation marks omitted). The
defendant challenged the constitutionality of the sentence because it was “based upon information supplied
by witnesses with whom the accused had not been confronted and as to whom he had no opportunity for
37a
cross-examination or rebuttal.” Id. at 243 (quoting
People v. Williams, 298 N.Y. 803, 804 (1949)). In rejecting the challenge, the Supreme Court noted that in
modern sentencing, which seeks a punishment that fits
the offender, not just the crime, the sentencing judge
should be able to consider “the fullest information possible concerning the defendant’s life and characteristics.” Id. at 247. If that information were “restricted to
that given in open court by witnesses subject to crossexamination,” it would become “unavailable.” Id. at
250. The Court explained that “the type and extent of
this information [necessary to the ‘practice of individualizing punishments’] make totally impractical if not
impossible open court testimony with crossexamination.” Id. The Court also explained that sentencing is a highly discretionary function, which is distinct from finding guilt, where due process requires
that the factfinder be “hedged in by strict evidentiary
procedural limitations.” Id. at 246. The Williams
Court indicated that the standard is no different for
capital cases, stating, “We cannot accept the contention” that “we should draw a constitutional distinction
as to the procedure for obtaining information where the
death sentence is imposed.” Id. at 251.
We conclude that Williams squarely disposes of
Umaña’s argument that the Sixth Amendment should
apply to capital sentencing.
Umaña maintains nonetheless that intervening
case law has eroded Williams, which he characterizes
as containing “analysis of a bygone era of untrammeled
judicial discretion.” But he provides no authority suggesting that Williams has been overruled. To the contrary, Williams remains good law. The Supreme Court
recently affirmed its viability in Alleyne v. United
States, 133 S. Ct. 2151 (2013), in which the Court recit-
38a
ed Williams’ holding that “the Sixth Amendment does
not govern” “factfinding used to guide judicial discretion in selecting a punishment ‘within limits fixed by
law.’” Id. at 2161 n.2 (quoting Williams, 337 U.S. at
246). And we recently held in United States v. Powell,
650 F.3d 388 (4th Cir. 2011), that “a sentencing court
[may] consider ‘any relevant information before it, including uncorroborated hearsay, provided that the information has sufficient indicia of reliability to support
its accuracy.’” Id. at 392 (quoting United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010)). Indeed, in
Powell, we specifically rejected the claim Umaña now
makes that intervening case law undermined Williams,
holding that “[r]ecent Confrontation Clause decisions
do not require us to reconsider this settled distinction
between trial evidence and sentencing evidence in the
hearsay context.” Id.
Moreover, Umaña’s suggestion that evidence at
sentencing be restricted by the Confrontation Clause
would frustrate the policy of presenting full information
to sentencers. As the Williams Court pointed out,
“Modern concepts individualizing punishment have
made it all the more necessary that a sentencing judge
not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial.”
337 U.S. at 247. Indeed, this policy has repeatedly been
recognized as essential to sentencing “reliability.” See,
e.g., Gregg v. Georgia, 428 U.S. 153, 204 (1976) (noting in
the Eighth Amendment context, “We think it desirable
for the jury to have as much information before it as
possible when it makes the sentencing decision”); see
also Woodson v. North Carolina, 428 U.S. 280, 303-05
(1976) (invalidating a North Carolina death penalty
statute for failing to allow defendants to put on evi-
39a
dence of their particular character and the circumstances of their offense). In United States v. Fields, 483
F.3d 313, 336 (5th Cir. 2007), the court explained:
Where the [Supreme] Court discusses the need
for reliability in the Eighth Amendment context, it is not talking about the appropriate
sources for information introduced at sentencing or even, more generally, about the reliability of evidence. It is instead focusing on (1) the
need to delineate, ex ante, the particular offenses for which death is a proportionate punishment and (2) the need for the jury to be able
to consider all factors (particularly mitigating,
but also aggravating) relevant to choosing an
appropriate punishment once the death penalty
is in play.
We agree with Fields. A policy of full information
during sentencing, unrestricted by the strict rules of
evidence, enhances reliability by providing the sentencing jury with more relevant evidence, whether presented by the government or the defendant. To now
impose the rigorous requirements of confrontation
would not only be a setback for reliable sentencing, it
could also “endlessly delay criminal administration in a
retrial of collateral issues.” Williams, 337 U.S. at 250.
Finally, Umaña contends that the Confrontation
Clause should apply to every fact that the jury finds,
even during the sentence selection phase, because facts
of guilt and punishment are “constitutionally significant.” He argues that jury factfinding of aggravating
factors during the sentence selection phase of trial “alters the legally prescribed range and does so in a way
that aggravates the penalty.” (Quoting Alleyne, 133 S.
Ct. at 2161 n.2). We find this argument unpersuasive.
40a
During the sentence selection phase of a capital trial,
the jury exercises discretion in selecting a life sentence
or the death penalty, and any facts that the jury might
find during that phase do not alter the range of sentences it can impose on the defendant. Under the Federal
Death Penalty Act, the jury finds the facts necessary to
support the imposition of the death penalty in the guilt
and eligibility phases of trial. See 18 U.S.C. §§ 35913596. It is only during these phases that the jury makes
“constitutionally significant” factual findings.
Only after finding Umaña death penalty eligible did
the jury in this case consider hearsay evidence to assist
it in exercising its discretion to select the appropriate
sentence. During the selection phase, a jury is not legally required to find any facts. And while it may do so,
such facts are neither necessary nor sufficient to impose the death penalty—they merely guide the jury’s
discretion in choosing a penalty. As the Supreme Court
has recently explained:
Juries must find any facts that increase either
the statutory maximum or minimum because
the Sixth Amendment applies where a finding
of fact both alters the legally prescribed range
and does so in a way that aggravates the penalty. Importantly, this is distinct from factfinding used to guide judicial discretion in selecting a punishment “within limits fixed by law.”
Williams v. New York, 337 U.S. 241, 246 (1949).
While such findings of fact may lead judges to
select sentences that are more severe than the
ones they would have selected without those
facts, the Sixth Amendment does not govern
that element of sentencing.
Alleyne, 133 S. Ct. at 2161 n.2 (emphasis added).
41a
Accordingly, we conclude that the Confrontation
Clause does not preclude the introduction of hearsay
statements during the sentence selection phase of capital sentencing. Accord Muhammad v. Sec’y, Fla. Dep’t
of Corrections, 733 F.3d 1065, 1073-77 (11th Cir. 2013);
Fields, 483 F.3d at 337-38. The district court’s holding
that the Confrontation Clause did not prevent the government from introducing the hearsay statements of
Umaña’s coconspirators during the selection phase of
sentencing is therefore affirmed.
B
Regardless of whether the Confrontation Clause
applies, Umaña challenges the admission of the hearsay
testimony in this case on the ground that it did not bear
“sufficient indicia of reliability to support its probable
accuracy.” Powell, 650 F.3d at 394 (quoting U.S.S.G.
§ 6A1.3(a)). We review the district court’s ruling in this
regard for abuse of discretion. See United States v. Basham, 561 F.3d 302, 330 (4th Cir. 2009).
With respect to the Fairfax Street murders, Umaña
argues that the hearsay statements of Ramos, Rivera,
and Arevalo—all of whom accused him of being the
shooter—did not bear sufficient indicia of reliability. He
argues that their statements were not corroborated by
independent evidence; that any similarities in their
statements were on “undisputed peripheral details”;
that Rivera and Ramos spent a weekend in jail together
before telling the same stories; that the statements
were the product of police pressure; that they were contradicted in some respects by neutral observers; and
that they were self-serving inasmuch as they exculpated the accusers, see Lee v. Illinois, 476 U.S. 530, 541
(1986) (noting that “accomplices’ confessions that incriminate defendants” are “presumptively unreliable”).
42a
While these are all legitimate arguments, we conclude that the court had other evidence that rendered
the hearsay testimony sufficiently reliable to overcome
any presumption and support its discretion in admitting
the evidence. First, there was undisputed ballistics evidence indicating that the same gun was used for both
the Fairfax Street and Lemon Grove Park murders.
Umaña admitted to being at the scene of both crimes,
and there is no evidence that anyone else was present
at both murder sites. Moreover, there was strong evidence, as discussed below, linking Umaña to the Lemon
Grove Park murder. Umaña attempts to explain away
the significance of the ballistics match by suggesting
that MS-13 members sometimes share guns, but there
was no evidence that Umaña himself ever shared his
gun. In addition, there was not just one accusation
against Umaña by the declarants, but three. To be sure
Ramos’s accusation arose only after he spent the weekend in jail with Rivera, but there is no evidence that
either Rivera’s or Arevalo’s accusations were tainted
by collusion. Finally, as the district court noted, the
statements themselves contained many other consistent details, such as the “make and model of car involved, the presence of crutches, the names of the other
participants, the number of victims, and the specific
gang signs displayed by the victims.” In light of all of
these circumstances, we conclude that the district court
did not abuse its discretion in finding the hearsay accusations of Rivera, Ramos, and Arevalo regarding the
Fairfax Street murders sufficiently reliable to admit
them into evidence.
With respect to the Lemon Grove Park murder, the
government introduced Arevalo’s hearsay statement
accusing Umaña of committing the crime. As with the
Fairfax Street murders, the ballistics evidence provid-
43a
ed support for the reliability of Arevalo’s accusation.
Moreover, Freddie Gonzalez—the target of the Lemon
Grove Park attack who escaped—identified Umaña in
open court as the assailant. This evidence, we conclude,
provided Arevalo’s accusation with sufficient indicia of
reliability to warrant its admission at sentencing. See
U.S.S.G. § 6A1.3(a).
At bottom, we conclude that the district court did
not abuse its discretion in admitting the hearsay evidence about the Los Angeles murders during the sentence selection phase of trial.
VII
Umaña next contends that the district court abused
its discretion in admitting the transcripts of the detectives’ interviews of Rivera, Arevalo, and Umaña himself on the ground that the transcripts included the detectives’ statements vouching for the credibility of several MS-13 members during the interviews, which, he
argues, amounted to improper government vouching at
trial. He points out that during the course of the interviews, the detectives told Rivera, for example, “I’m
kind of buying your story here,” and Arevalo, “You
don’t seem like the guy that did that.” In the interview
of Umaña himself, a detective stated that Ramos, Arevalo, and Rivera were “in jail right now for something
that he did.”
Umaña did not make this objection at trial, and accordingly we review it under the plain error standard.
That standard requires Umaña to demonstrate (1) that
the admission of the evidence was error; (2) that the
error was plain; and (3) that it affected his substantial
rights. Even then, we may only exercise our discretion
as to whether to notice the error if it seriously affected
44a
the fairness, integrity, or public reputation of the proceedings. See Johnson v. United States, 520 U.S. 461,
466-67 (1997).
While government vouching for the credibility of
its own witness is inappropriate, it is generally improper only when it comes to the jury at trial from the prosecutor’s indication of his personal belief about the credibility of a witness, although it could also be improper
for the prosecutor to solicit similar vouching from government witnesses. See United States v. Lewis, 10 F.3d
1086, 1089 (4th Cir. 1993).
In this case we find no error, much less plain error.
A reasonable jury would not take the detectives’ comments during the interviews as vouching for the trustworthiness of the witness being interviewed, but rather
as interrogation devices designed to encourage the witness to talk. Patronizing a witness with positive comments in order to uncover evidence of criminal conduct,
when introduced by the prosecutor in a transcript, can
hardly be taken as a prosecutor’s opinion that the witness was trustworthy. And admitting several such isolated comments embedded in voluminous transcripts
would not in any event be plain error that affected
Umaña’s substantial rights.
In a similar vein, Umaña challenges as vouching a
question by the prosecutor during trial to a detective
who interviewed Ramos, Arevalo, and Rivera, in which
he asked what was “consistent among all of the individuals [he] interviewed.” We find that this question was
not vouching at all, but a factual inquiry to uncover
statements common among the witnesses.
For these reasons, we reject Umaña’s vouching
claims.
45a
VIII
Umaña contends that the district court abused its
discretion in refusing to permit him—during the sentence selection phase—to introduce evidence of the
murders committed by his RICO coconspirators, who
were also MS-13 members. He argues that the evidence was relevant to show that his own violent proclivities were not unique but rather were a “product of
social conformity.”
The district court applied 18 U.S.C. § 3592(a)(8),
which provides for the admission of evidence in the sentence selection phase relating to the “defendant’s background, record, or character or any other circumstance
of the offense that mitigate[s] against imposition of the
death sentence,” and concluded that evidence of other
MS-13 murders was “irrelevant to his character or the
circumstances of his offenses.” In addition, the court
concluded that such evidence would “confuse and mislead the jury.” See 18 U.S.C. § 3593(c) (authorizing the
judge to exclude evidence if “its probative value is outweighed by the danger of creating unfair prejudice,
confusing the issues, or misleading the jury”).
We conclude that the district court did not abuse
its discretion. It is difficult to imagine that giving the
jury evidence of unrelated murders by MS-13 members
would contribute to the individualized decision of
whether to impose the death penalty on Umaña. Indeed, it might even work against him, linking him with
a number of other unrelated murders. Moreover,
whatever benefit Umaña might have obtained from introducing such evidence was already available to him
from evidence in the record. For example, an MS-13
member testified that he had once acted as a lookout
while another MS-13 member “robbed two drunk His-
46a
panic guys,” and one of the victims “was shot dead”
during the robbery. Another MS-13 member testified
about the activities his clique engaged in: “Sell drugs,
rob people, try to kill people.” A detective testified
that MS-13’s motto was “Mata, Violar, Controla,” which
translates to “Kill, Rape, Control.” Finally, the jury
had a copy of the indictment, which listed many of the
murders about which Umaña wanted to submit evidence.
The district court was appropriately concerned that
if Umaña tried to prove these murders during sentencing, the process would amount to mini-trials that would
take days and distract the jury. In excluding this evidence, the court acted well within its discretion.
IX
Umaña contends that during closing argument in
the sentence selection phase of trial, the prosecutor
made a number of improper statements to the jury that
were sufficiently prejudicial as to require reversal of
the death penalty verdict. See United States v. Scheetz,
293 F.3d 175, 185-86 (4th Cir. 2002). But Umaña objected to only one of the statements when made at trial,
and therefore we will review the others for plain error.
See United States v. Woods, 710 F.3d 195, 202 (4th Cir.
2013); United States v. Adam, 70 F.3d 776, 780 (4th Cir.
1995).
A
The statement that Umaña objected to was the
prosecutor’s comment to the jury about Umaña’s attempt to bring a concealed shank (tied to his penis) into
the courtroom. The prosecutor argued that Umaña
tried to bring in the shank “to fight off rivals. … You
know who the rivals were? They’re the Marshals.
47a
Those are his rivals. The judge is his rival. I’m his rival. Anybody in this courtroom is a rival. You’re his
rival. He brought it on the first day of jury selection.”
(Emphasis added). The court sustained Umaña’s objection, and the prosecutor continued the closing argument thereafter making a different point—that Umaña’s rival was “justice.”
Umaña contends that the prosecutor’s statement
that “you’re his rival” was improper because it encouraged the jurors to abandoned their role as “neutral adjudicators” and become “interested parties.” See United States v. Manning, 23 F.3d 570, 574 (1st Cir. 1994);
see also Caro, 597 F.3d at 626. We agree. The prosecutor’s statement portraying the jurors as Umaña’s rivals
was improper. Indeed, the government concedes that
it was “ill-advised.”
Nonetheless, we conclude that it was not so prejudicial as to deprive Umaña of a fair sentencing trial.
The comment was isolated and did not constitute a pervasive theme throughout the closing argument. Moreover, its effect could only be minimal in light of the fact
that Umaña did indeed try to bring a shank to the jury
selection proceeding, which likely influenced the jurors
more than did the prosecutor’s statement. In addition,
we think that, in light of Umaña’s attempt to bring the
shank to the jury selection, the prosecutor’s comments
were, to some degree, invited.
In sum, while the remark was inappropriate, we do
not believe that it was so prejudicial as to call into
question the integrity of the jury’s death sentence. The
jury found every aggravating factor beyond a reasonable doubt, making it unlikely that the isolated comment
was material to its decision.
48a
B
The other comments made during the government’s closing argument that Umaña challenges were
not objected to when made, and therefore we review
them under the plain error standard.
Umaña contends that the prosecutor misleadingly
compared him to other MS-13 members with the following comment:
Let’s bring something back to the front here
and that’s that this defendant is compared with
other MS 13 members according to what they
would have you believe, because all those MS
13 members were framed and formed and created out of El Salvador.
* * *
So let’s compare him to the people around him
and quit taking him out and separating him and
looking at him as if he is only this way because
of factors. He’s here because of who he is. And
he’s a killer. He’s shown it over and over and
over again. And he’s a killer among killers.
They talk about killing, yeah. But we haven’t
had any evidence of it. And of all the people
that were around him, he was the killer. He
rose to the top as the killer.
*
He’s the only killer.
*
*
Umaña argues that it was improper for the prosecutor
to refer to him as the “only killer” in MS-13 when he
was not permitted to put on evidence to the contrary.
First, as we have already concluded, the district
court acted within its discretion in refusing to allow
49a
Umaña to submit additional evidence regarding murders committed by other MS-13 members. Moreover,
Umaña misreads the statement, “He’s the only killer.”
When taken in context, the government clearly could
not have meant that Umaña was the only member of
MS-13 who had committed murder. Indeed, shortly before making that statement, the prosecutor stated that
Umaña was a “killer among killers.” (Emphasis added). Finally, there was ample evidence before the jury
that other MS-13 members committed murders, as we
have already summarized.
We conclude that the statement can reasonably be
taken only as commenting that among the MS-13 members in the RICO conspiracy charged in the case, Umaña was the only one who pulled the trigger in the Salinas brothers’ murders. If the statement was error, it
was not plain error, nor did it affect Umaña’s substantial rights.
C
Umaña claims next that the prosecutor made the
following improper comment:
But you know what we heard today from one of
their witnesses? There are only 240 MS-13
members in prison. And I can promise you that
if one of them was there for life and was behaving, we would have heard all about it.
Umaña notes that the district court had earlier denied
his motion to obtain data from the Bureau of Prisons
regarding the behavior of incarcerated MS-13 members. Nonetheless, he obtained the evidence he wanted
when he called as a witness a retired warden for the
Bureau of Prisons who testified that MS-13 is not considered an especially serious security risk in the prison
50a
environment. Understood in that context, the prosecutor’s statement was just a critique of this testimony,
and we find nothing improper about it.
D
Next, Umaña objects to the prosecutor’s comment
made during closing argument that “[y]ou want to
bring El Salvador here. … [Y]ou’d better be ready for
some American justice.” He argues that the statement
“invoked an us-versus-them theme” that did nothing
more than encourage “[r]acial prejudice.” The government argues that the comments were not inappropriate
in view of the fact that Umaña’s mitigation case turned
on his upbringing in El Salvador, and therefore it was
appropriate to “urg[e] the jury to hold him to American
standards of justice.”
We cannot agree that the comment that Umaña
should be “ready for some American justice” responds
to Umaña’s mitigation case that his impoverished El
Salvadoran upbringing was responsible for his criminality. But the statement was isolated in only a small part
of the prosecutor’s closing argument. Moreover, any
prejudice that the statement may have caused was likely dwarfed by the racial prejudice Umaña himself incited in letters he had written from prison evincing strong
anti-American rhetoric. For example, one letter in evidence claimed that “2012 and 2013 … are when these
little Americans are going to be humiliated by all Hispanics from Central America, South America, and Latin America, especially by prisoners, drug dealers, mafias, and gangbangers.”
Finally, the district court instructed the jury that
national origin could not play a part in its verdict, and
each juror certified in writing that it had not.
51a
As such, even if the error was plain, we conclude
that it did not affect Umaña’s substantial rights.
E
Next, Umaña challenges the following prosecutorial statement made during closing argument:
[I]f you give him life, [he] is going to have his
inmate bill of rights. … He took lives. Are you
going to give him his bill of rights? Manuel and
Ruben didn’t have a bill of rights.
* * *
They cease to become living, breathing humans
and became a corpse. Well, they’re a corpse.
And they’re a corpse and you’re going to send
him to the dining hall. Is that justice?
Umaña argues that this statement improperly compared the plight of the victims with life in prison, thus
making light of a term of life imprisonment without the
possibility of release.
We do not believe that it was error, much less plain
error, for the prosecutor to have compared Umaña’s
potential prison sentence with the plight of the victims.
In United States v. Runyon, 707 F.3d 475, 513 (4th Cir.
2013), the prosecutor “made a number of comments
contrasting the criminal justice system’s treatment of
[the defendant] with [the defendant’s] treatment of [the
victim].” We declined to find such comments to be improper, noting that “it is, of course, perfectly permissible for the prosecution to urge the jury not to show a
capital defendant mercy.” Id. In Runyon, we thought
that “the whole matter represent[ed] the sort of thrust
and parry in which attorneys typically engage in the
52a
course of their last chance to persuade a jury.” Id. We
reach the same conclusion here.
F
Finally, Umaña challenges the prosecutor’s use of
religious imagery during the course of closing argument. When discussing Umaña’s letters, sent while he
was in prison, the prosecutor said:
This [letter] is called—it’s got a title. One more
day with the beast. Do you remember who the
beast is? It’s tattooed on his body. It’s in his
heart. It’s the devil. It goes like this:
“One more day has now begun and I
thank the beast that we keep on standing here with a joint of weed and a fully
loaded gun, ready and prepared to go
out into the streets like I have always
planned. …”
Umaña argues that, in these comments, the prosecutor
was “compar[ing] [him] to ‘the devil.’”
To be sure, we have condemned “religiously
charged arguments as confusing, unnecessary, and inflammatory.” Bennett v. Angelone, 92 F.3d 1336, 1346
(4th Cir. 1996). In this case, however, prejudice could
hardly have occurred, as Umaña’s conduct amply invited reference to the devil. When he was in the courtroom, he “threw” MS-13’s gang sign—the horns of the
devil. Moreover, he had tattoos of devilish figures on
his body. And, of course, his prison letters—including
the one that the prosecutor read immediately after she
made the beast comment—contained vivid imagery
evoking the devil. While it might have been better not
to make so explicit or direct an allusion to the devil and
its place in Umaña’s heart, we cannot conclude that, in
53a
context, the comment so prejudiced Umaña as to affect
his substantial rights.
In sum, we conclude that the prosecutorial statements made during closing argument either were not
error or, if they were, were not sufficiently prejudicial
to require vacating the death penalty verdict.
X
Umaña next challenges the district court’s decision
to allow the government to prove “future dangerousness” as a nonstatutory aggravating factor during the
sentence selection phase of the trial. He argues that, in
the prison context, the jury can never make a prediction about future dangerousness on any reliable basis.
He points to several empirical studies by Mark Cunningham, his defense expert, who reported a lack of
correlation between future dangerousness findings and
actual prison violence.
We have, however, previously rejected this precise
argument, holding that whether a defendant would
pose a danger to others while in prison is a proper
question for the jury. See Hager, 721 F.3d at 200. As
we said in Hager, “Perhaps we might someday be presented with a case in which we are persuaded that the
evidence presented as to a defendant’s future dangerousness was merely speculative or that it was constitutionally infirm.” Id. Like in Hager, we conclude that
this is not such a case. Indeed, there was ample evidence presented in this case to allow the jury to find
that Umaña was likely to commit criminal acts of violence in the future, even in prison, and that he would
constitute a continuing and serious threat to the lives
and safety of others.
54a
With respect to this aggravating factor, Umaña also challenges the structure of the verdict form because
it allowed the jury only to indicate that it had found the
particular subfactors and did not give the jury an opportunity to indicate whether or not they had found the
“overarching aggravator” of future dangerousness.
Umaña argues that this created a “presumption” of future dangerousness upon finding any one of the subfactors.1
1
The form that the district court submitted to the jury for
the purpose of finding the aggravating factor of future dangerousness appears as follows:
Do you, the jury, unanimously find that the government
has proven beyond a reasonable doubt that the defendant is likely to commit criminal acts of violence in the future which would constitute a continuing and serious
threat to the lives and safety of others, as evidenced by
at least one or more of the following:
a. The defendant has engaged in a continuing pattern of violence, attempted violence, and threatened violence, including but not limited to the crimes alleged
against the defendant in the Indictment.
Yes: ______ No: ______
b. The defendant poses a future danger to the
lives and safety of other persons as demonstrated by his
lack of rehabilitation after incarceration, his pattern of
criminal conduct, and his allegiance to and membership
in MS-13?
Yes: ______ No: ______
c. The defendant has never expressed any remorse for killing Ruben Garcia Salinas as indicated by
defendant’s statements to fellow gang-members during
the course of and following the offenses alleged in the
Indictment?
Yes: ______ No: ______
55a
We disagree with Umaña’s reading of the form. To
be sure, we think that the form would have been clearer had the introductory language ended after the first
two lines and had each lettered paragraph thereafter
begun with future dangerousness language. But the
form as used did not create any presumption, as Umaña
argues. Rather, it presented the jury with four specific
factual circumstances of future dangerousness on which
the government presented evidence. The form was not
designed to permit the jury to find future dangerousness except by finding one or more of the specific facts
evidencing future dangerousness. And, of course, the
form permitted the jury to find a fact evidencing future
dangerousness only if they were unanimous and the
fact was proved beyond a reasonable doubt.
XI
Umaña argues that he should have been allowed to
submit evidence regarding the impact that his execution would have on his wife and child. This argument,
however, is squarely foreclosed by our decision in
Hager, 721 F.3d at 194 (“[A]llowing a capital defendant
to argue execution impact as a mitigator is improper”).
XII
Umaña next contends that his death sentence violated the Eighth Amendment because he was only convicted of “second degree murder.” He points out that
the verdict form in this case reflected a finding that he
committed murder, but not an additional finding that he
d. The defendant has demonstrated an allegiance
to and active membership in MS-13, a violent criminal
enterprise?
Yes: ______ No: ______
56a
did so with “premeditation and deliberation.” He
therefore argues that the jury’s finding of guilt was sufficient to “establish only a conviction for second degree
murder.” Moreover, he maintains that there is a “national consensus … against death as a punishment for
second degree murder.” He explains that because second degree murder is “unpremeditated malice killing,”
it is “not well suited to capital punishment” because
such murders cannot be deterred by the death sentence. Finally, he asserts that only nine States “authorize death for the second degree murders that occurred
here.”
The death-qualifying conduct that the jury found in
this case was (1) that Umaña murdered the Salinas
brothers in aid of racketeering for the purpose of maintaining or increasing his position in a racketeering enterprise, in violation of § 1959(a)(1); (2) that he used a
firearm in relation to a crime of violence resulting in
the deaths of the Salinas brothers and that the killings
were done “with malice aforethought,” in violation of
§ 924(c) and (j)(1); and (3) that he killed the two brothers and attempted to kill another person “in a single
criminal episode.” The jury also found that the other
criteria for imposing the death penalty, as contained in
the Federal Death Penalty Act of 1994, were satisfied
in this case. The question raised by Umaña’s challenge
is whether the death penalty, which is authorized by
these statutes, is an excessive or cruel and unusual
punishment for the conduct found by the jury, as prohibited by the Eighth Amendment.
“[T]he Eighth Amendment’s protection against excessive or cruel and unusual punishments flows from
the basic ‘precept of justice that punishment for [a]
crime should be graduated and proportioned to [the]
offense.’” Kennedy v. Louisiana, 554 U.S. 407, 419
57a
(2008) (alterations in original) (quoting Weems v. United States, 217 U.S. 349, 367 (1910)). To ensure proportionality, “capital punishment must ‘be limited to those
offenders who commit a narrow category of the most
serious crimes and whose extreme culpability makes
them the most deserving of execution.’” Id. at 420
(quoting Roper v. Simmons, 543 U.S. 551, 568 (2005))
(internal quotation marks omitted). As such, States
and the federal government must “limit the class of
murderers to which the death penalty may be applied.”
Brown v. Sanders, 546 U.S. 212, 216 (2006). This limiting function is generally accomplished when “the trier
of fact … convict[s] the defendant of murder and find[s]
one ‘aggravating circumstance’ (or its equivalent) at
either the guilt or penalty phase.” Tuilaepa v. California, 512 U.S. 967, 972 (1994). The Supreme Court has
also recognized several “categorical restrictions on the
death penalty.” Graham v. Florida, 560 U.S. 48, 59
(2010). In so doing, the Court uses the following approach:
[It] first considers “objective indicia of society’s
standards, as expressed in legislative enactments and state practice” to determine whether there is a national consensus against the sentencing practice at issue. Next, guided by “the
standards elaborated by controlling precedents
and by the Court’s own understanding and interpretation of the Eighth Amendment’s text,
history, meaning, and purpose,” the Court must
determine in the exercise of its own independent judgment whether the punishment in question violates the Constitution.
Id. at 61 (quoting Roper, 543 U.S. at 563, and Kennedy,
554 U.S. at 421).
58a
These Eighth Amendment principles do not suggest,
as Umaña urges, a categorical ban on capital punishment
for “second degree murders.” To the contrary, the Supreme Court has explicitly approved a plethora of aggravating factors that afford the jury “wide discretion”
in crimes “where the victim dies.” Kennedy, 554 U.S. at
440. And there is no indication by the Court that the
States or the federal government must include premeditation or deliberation as a required aggravating factor.
Indeed, the Court has repeatedly upheld death penalty
schemes that did not require a finding of premeditation
and deliberation. For instance, in Arave v. Creech, 507
U.S. 463 (1993), the statute under which the defendant
was convicted defined “first degree murder” to include
not only premeditated murders but also murders where,
for example, (1) the victim was a fellow prison inmate or
law enforcement officer, (2) the defendant was already
serving a sentence for murder, (3) the murder occurred
during a prison escape, or (4) the murder occurred during the commission of specified felonies. Id. at 475. In
the context of that statute, the Court found sufficiently
narrowing as an aggravating factor the fact that the defendant was a “cold-blooded, pitiless slayer.” Id. at 47276. Similarly, in Jurek v. Texas, 428 U.S. 262 (1976), the
Court upheld the death penalty for murder that had to
be deliberate but not premeditated and where the jury
made a finding of future dangerousness. Id. at 269 (describing the regime). And in Tison v. Arizona, 481 U.S.
137 (1987), the Court upheld the death penalty for a participant in a felony murder who had not actually committed the murder. The Court held that the defendant’s
“substantial participation in a violent felony under circumstances likely to result in the loss of innocent human
life may justify the death penalty even absent an ‘intent
to kill.’” Id. at 154. In short, there is no suggestion that
59a
capital punishment is appropriate only for murders involving premeditation and deliberation.
In the same vein, a survey of state statutes reveals
a lack of any national consensus that premeditation and
deliberation are necessary to qualify a defendant for
the death penalty. Most state statutes that divide
murder into degrees include in “first degree murder”
more than just premeditated murders. The overwhelming majority include felony murders and make
them punishable by death without any showing of premeditation.2 And there are numerous examples of other types of murder, for which the penalty may be death,
that do not require premeditation or deliberation.3 The
2
On our review of the 22 States that divide murders into degrees, 17 make felony murder without premeditation a capital
crime. See Ariz. Rev. Stat. Ann. § 13-1105; Ark. Code Ann. §§ 510-101 to -102; Cal. Penal Code §§ 189, 190; Colo. Rev. Stat. §§ 183-102, -1.3-1201; Del. Code Ann. tit. 11, § 636; Idaho Code Ann.
§§ 18-4003 to -4004; La. Rev. Stat. Ann. § 14:30; Miss. Code Ann.
§ 97-3-19; Neb. Rev. Stat. § 28-303; Nev. Rev. Stat. § 200.030; N.H.
Rev. Stat. § 630:1; N.C. Gen. Stat. § 14-17; Okla. Stat. tit. 21,
§§ 701.7, 701.9; S.D. Codified Laws §§ 22-16-4, -6-1; Tenn. Code
§ 39-13-202; Wash. Rev. Code §§ 10.95.020-.030; Wyo. Stat. Ann.
§ 6-2-101.
And in the 10 States that do not include degrees, all 10 provide for capital punishment for felony murder absent any premeditation. See Ala. Code § 13A-6-2; Ga. Code Ann. § 16-5-1; Ind. Code
§§ 35-42-1-1, 35-50-2-3; Ky. Rev. Stat. Ann. § 507.020; Mont. Code
Ann. § 45-5-102; Ohio Rev. Code Ann. § 2903.01; Or. Rev. Stat.
§§ 163.095, .105, 115; S.C. Code Ann. §§ 16-3-10 to -20; Tex. Penal
Code § 19.03; Utah Code Ann. § 76-5-202.
3
E.g., Ariz. Rev. Stat. Ann. § 13-1105(A)(3) (classifying as
first degree murder the unpremeditated, intentional killing of a
police officer in the line of duty); Ark. Code Ann. § 5-10-101 (making it a capital crime to cause the death of a child less than 14 years
of age while exercising extreme indifference to human life); Nev.
60a
principle that may be derived from these state statutes
is that capital murders are not defined solely by premeditation and deliberation, but rather by elements
that make those murders particularly heinous.
The federal statutes applicable in this case follow
the national consensus. Section 1959 authorizes the
death penalty for murder that aids racketeering enterprises, and § 924(c) and (j)(1) authorize the death penalty for committing murder with malice aforethought, as
defined in 18 U.S.C. § 1111(a), while using a firearm
during and in relation to a crime of violence. The Federal Death Penalty Act further narrows the circumstances where the death penalty may be imposed by
requiring that the jury find that the defendant had the
requisite intentional mens rea, 18 U.S.C. § 3591(a)(2),
and that at least one statutory aggravating factor existed, id. § 3593(d). The jury found the conditions satisfied in this case, including that Umaña had engaged in
multiple killings. See id. § 3592(c)(16).
In light of the flexibility the Supreme Court affords
lawmakers in determining the aggravating factors that
define capital murders, Kennedy, 554 U.S. at 440, and
because there is no nationwide consensus requiring
premeditation or deliberation as required predicates
for the imposition of the death penalty, we conclude
that §§ 1959(a)(1) and 924(c), (j)(1), in concert with the
Federal Death Penalty Act, impose sufficient narrowing criteria to satisfy the Eighth Amendment.
Umaña contends alternatively that even if the
death penalty is not categorically barred as a punishment for the crimes of which he was convicted, it was
nonetheless excessive in the particular circumstances
Rev. Stat. § 200.030(1)(c) (defining as murder in the first degree
murders committed to avoid arrest).
61a
of this case. This argument merits minimal discussion.
The jury found that Umaña killed two people in furtherance of a racketeering enterprise, and that he had
killed before and posed a danger in the future. We conclude that the death penalty was proportional to the
crimes for which Umaña was convicted.
XIII
Finally, Umaña contends—with respect to the
claim he made to the district court that he is mentally
retarded and therefore should not receive the death
penalty—that the government should have borne the
burden of proof. He does not challenge the merits of
the district court’s findings with respect to his claim of
mental retardation. Rather, he argues that since his
interest in the issue is a “matter of life and death,” see
Atkins v. Virginia, 536 U.S. 304 (2002) (holding that the
death penalty is inappropriate for mentally retarded
defendants), the government should have borne the
burden to prove him competent and, because it did not
carry the burden, he should not have received the
death penalty.
We conclude that Umaña cannot now make this argument. He argued below that he had the burden of
proof on the issue, and any error that he now claims
was invited by him. In his motion for a pretrial hearing
on mental retardation, he stated:
Because Defendant’s court-appointed neuropsychologist has obtained a full-scale IQ result
of 66, it appears that there is a substantial possibility that Defendant will ultimately be able
to carry his burden of establishing by a preponderance of the evidence that he is mentally
62a
retarded and thus ineligible for the death penalty.
(Emphasis added). This statement by Umaña that he
bore the burden of proving mental retardation was not
an errant mistake. In two other motions requesting a
hearing on mental retardation, he included citations to
various district court cases describing the procedure
for such hearings, which included the following parenthetical: “finding that question of mental retardation
should be resolved by the judge at a pretrial hearing,
and burden should be on defendant by preponderance
of the evidence.” Moreover, at the hearing itself, the
district court stated at the outset that the burden
would be on Umaña to prove mental retardation by a
preponderance of the evidence, and Umaña did not object. He cannot now complain that the district court
followed the very procedure that he requested. See
United States v. Lespier, 725 F.3d 437, 449-51 (4th Cir.
2013).
In any event, we conclude that Umaña correctly
stated the law in representing to the district court that
he had to carry the burden of proof on the issue. When
a defendant seeks to show that he is mentally retarded,
he is putting on an affirmative defense that would preclude execution, see Walker v. True, 399 F.3d 315, 326
(4th Cir. 2005), and defendants may constitutionally be
made to bear the burden of proof for affirmative defenses, see Leland v. Oregon, 343 U.S. 790, 799 (1952)
(holding, in the context of a capital case, that States
may require defendants to bear the burden of proving
insanity beyond a reasonable doubt); see also Patterson
v. New York, 432 U.S. 197, 210 (1977) (“Proof of the
non-existence of all affirmative defenses has never been
constitutionally required”).
63a
Umaña now argues that, as a matter of due process,
the government must bear the burden of proof on mental retardation, citing United States v. Bush, 585 F.3d
806, 814 (4th Cir. 2009), where we held that the involuntary administration of antipsychotic drugs to restore a
defendant’s competence for trial required the government to prove the relevant factors by clear and convincing evidence. See also Addington v. Texas, 441
U.S. 418, 431-33 (1979) (concluding that the government’s proof must meet a “clear and convincing evidence” standard for civil commitment). These cases,
however, are inapt comparisons. When the government seeks to involuntarily commit or medicate a defendant, it is not presenting an affirmative defense but
attempting to infringe on the individual’s constitutionally protected liberty interests. See Sell v. United
States, 539 U.S. 166, 177-79 (2003); Addington, 441 U.S.
at 425.
Umaña also argues that a finding of mental retardation was an Apprendi element of his capital offense,
which would alter the prescribed range of sentences to
which he was exposed and, therefore, be the government’s responsibility to prove. See Alleyne, 133 S. Ct.
at 2160. But we rejected this precise argument in
Walker, where we stated:
[T]he finding of mental retardation does not increase the penalty for the crime beyond the
statutory maximum—death. Rather, a defendant facing the death penalty may avoid that
penalty if he successfully raises and proves by a
preponderance of the evidence that he is mentally retarded. The state does not have a corollary duty to prove that a defendant is “not retarded” in order to be entitled to the death
penalty. Accordingly, “an increase” in a de-
64a
fendant’s sentence is not predicated on the outcome of the mental retardation determination;
only a decrease.
399 F.3d at 326 (citations omitted). When a defendant
raises mental retardation as an issue, its resolution can
only decrease the sentence to which the defendant is
exposed, and the Apprendi line of cases is therefore not
applicable. See In re Johnson, 334 F.3d 403, 405 (5th
Cir. 2003) (“[N]either Ring and Apprendi nor Atkins
render the absence of mental retardation the functional
equivalent of an element of capital murder which the
state must prove beyond a reasonable doubt. As the
state points out, the absence of mental retardation is
not an element of the sentence any more than sanity is
an element of an offense” (citation omitted)).
We accordingly reject Umaña’s argument that the
government had the burden of proving the absence of
mental retardation in order for him to receive the death
penalty.
XIV
Umaña has presented numerous issues in challenging his conviction and sentence, each of which has been
fully presented in his fulsome brief and at oral arguments to the court. After having carefully considered
each of his arguments, as well as the record in this case,
we conclude that Umaña had a fair trial and that the
death penalty was justified by the jury’s factual findings and by law and was not imposed under the improper influence of passion, prejudice, or any other arbitrary factor. Accordingly, we affirm his conviction
and sentence.
AFFIRMED
65a
GREGORY, Circuit Judge, dissenting:
The majority opinion denies Mr. Umaña the right
to confront his accusers in a jury proceeding to determine whether he lives or dies. The right to confront
one’s accusers is a right as old as it is important. Cf.
Acts 25:16 (“[I]t is not the Roman custom to hand over
anyone before they have faced their accusers…”). The
Sixth Amendment guarantees a defendant the right “to
be confronted with the witnesses against him” “in all
criminal prosecutions.” U.S. Const. amend. VI. It also
guarantees the right to an attorney, jury factfinding,
notice of the crimes of which a defendant is accused,
and a trial in the venue where the crime was committed. Id.
The last four of these Sixth Amendment rights—
counsel, jury, venue, and notice—are not at issue today,
nor are they controversial. During Federal Death Penalty Act (“FDPA”) proceedings, a defendant cannot be
sentenced to death without these Sixth Amendment
rights. However, under the majority’s holding today,
capital defendants are denied the right to confront their
accusers throughout certain stages of an FDPA proceeding. In contravention of the history and text of the
Confrontation Clause, and in spite of modern Supreme
Court jurisprudence emphasizing the importance of the
Confrontation Clause, the majority strips Umaña of the
Sixth Amendment right most important for ensuring
the accuracy of trial outcomes during the most important proceeding of his life.
This is an important constitutional question that
the Supreme Court has not yet resolved, though three
circuits have wrestled with the issue. See Muhammad
v. Sec’y, Fla. Dep’t of Corr., 733 F.3d 1065 (11th Cir.
2013) (finding that Confrontation Clause does not apply
66a
to capital cases after guilty verdict); Szabo v. Walls, 313
F.3d 392, 398 (7th Cir. 2002) (same); United States v.
Fields, 483 F.3d 313, 324–338 (5th Cir. 2007) (same);
Proffitt v. Wainwright, 685 F.2d 1227, 1252–53 (11th
Cir. 1982) (finding a right to cross examine the author
of a psychiatric report under the Sixth Amendment
during sentencing) modified, 706 F.2d 311 (expressly
limiting case to psychiatric reports).1 This is an issue of
first impression in this circuit, though we have held
that the Confrontation Clause does not apply in noncapital sentencing. United States v. Powell, 650 F.3d
388, 392–93 (4th Cir. 2011).
“Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of
only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for
reliability in the determination that death is the appropriate punishment.” Woodson v. North Carolina, 428
U.S. 280, 305 (1976) (plurality opinion). I would refuse
to strip a defendant of the Confrontation Clause right—
a right whose “very mission … is to advance the accu1
In addition, district courts have addressed this issue, reaching conflicting results. Four district courts have found that the
Clause applies. See United States v. Stitt, 760 F. Supp. 2d 570, 58182 (E.D. Va. 2010); United States v. Sablan, 555 F. Supp. 2d 1205
(D. Colo. 2007); United States v. Mills, 446 F. Supp. 2d 1115, 1127–
1129 (C.D. Cal. 2006); United States v. Green, 372 F. Supp.2d 168,
175 (D. Mass. 2005). Another district court found that the right
applies, but this decision was vacated. United States v. Jacques,
768 F.2d 684, 698–700 (D. Vt. 2011) vacated by United States v.
Jacques, 684 F.3d 324, 330 (2d Cir. 2012). Two district courts have
found that the right applies only during the eligibility phase of sentencing, which is the second stage of FDPA trials. See United
States v. Jordan, 357 F. Supp. 2d 889, 903 (E.D. Va. 2005); United
States v. Bodkins, CRIM.A. 4:04CR70083, 2005 WL 1118158 (W.D.
Va. May 11, 2005).
67a
racy of the truth-determining process in criminal trials”—at a proceeding in which a jury must decide
whether a man lives or dies. United States v. Inadi,
475 U.S. 387, 396 (1986) (internal quotation marks and
citations omitted). Accordingly, I dissent.
I.
I begin with some of the factual background that
provides the foundation for my reasoning. First, one
must understand the unique structure of FDPA trials,
which illustrates that the Confrontation Clause should
not disappear simply because a defendant is accused of
a crime at a later stage of his judicial proceedings. Second, one must understand the nature of the accusations
made in this particular case. Mr. Umaña was sentenced
to death largely based on unconfronted testimony that
was as damning as it was dubious.
The FDPA requires three jury findings before a
criminal defendant can be killed by the federal government. First, the defendant must be found guilty of a
death-eligible crime. 18 U.S.C. § 3591. Second, a factfinder must decide whether one of several aggravating
factors exists. The factors that make a defendant eligible for death are listed by statute. 18 U.S.C. § 3593(e).
Third, if such an aggravating factor is found, the factfinder must finally decide whether all aggravating factors outweigh all mitigating factors. Id. Unless the
factfinder makes the requisite findings in each of the
three stages, death is not within the permissible range
of sentences.
In this case, the district judge trifurcated the proceedings so that each of the above steps was conducted
separately. J.A. 3224. In the second phase, the government only sought to prove that Mr. Umaña met two
68a
statutory aggravating factors: an attempt to kill more
than one person in a single criminal episode, and the
knowing creation of a grave risk of death to more than
one person. J.A. 2631; see 18 U.S.C. § 3592(c)(5), (c)(16).
In the third phase, the government sought to prove
four more aggravating factors. J.A. 3543–45. Most relevant in this case, and what ultimately became the keystone of the government’s argument, was whether Mr.
Umaña had been involved in other acts of violence not
reflected in his criminal record, specifically two separate incidents of murder in Los Angeles. J.A. 3544.
The primary evidence for these crimes was a series of
transcripts of police interrogations in which accomplices of Umaña who were with him during the first of two
Los Angeles murder incidents claim that Umaña was
the only member in their group who fired a weapon
that killed two teenagers. Umaña had no opportunity
to cross-examine these witnesses.
The FDPA provides a set of safeguards that applies to evidence at capital sentencing, though constitutional safeguards also apply. See Estelle v. Smith, 451
U.S. 454, 462–63 (1981). While evidence presented need
not comport with the entirety of the Federal Rules of
Evidence, information must nonetheless be excluded “if
its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.” 18 U.S.C. § 3593; accord Fed. R. Evid.
403. In addition, the FDPA explicitly provides for
rights echoing those of the Sixth Amendment. The
FDPA requires that the government attorney give notice of the specific aggravating factors that will be used
to justify a death sentence. Compare § 3593(a) with
U.S. Const. amend. VI (“[T]he accused shall enjoy the
right … to be informed of the nature and cause of the
accusation.”). The defendant is given the right to a ju-
69a
ry. Compare § 3593(b) with U.S. Const. amend. VI
(“[T]he accused shall enjoy the right to a speedy and
public trial, by an impartial jury.”). However, the statute is silent on other Confrontation Clause rights. See
generally 18 U.S.C. §§ 3591-99. Importantly, the fact
that the FDPA is silent on certain constitutional rights
does not mean that those rights do not exist or that the
Act is unconstitutional. See United States v. Fulks, 454
F.3d 410, 437–38 (4th Cir. 2006); United States v.
Sampson, 486 F.3d 13, 22–23 (1st Cir. 2007).
Finally, in addition to understanding the structure
of FDPA trials, it is important to emphasize that the
unconfronted testimony used against Umaña was as
critical to the government’s case as it was inherently
suspect. In Bruton v. United States, a co-defendant’s
accusation against the defendant was introduced as evidence by a separate witness. 391 U.S. 123, 124 (1968).
In finding a violation of the Confrontation Clause, the
Court noted that accusations from co-defendants facing
punishment for the same crime are not only “devastating to the defendant but their credibility is inevitably
suspect … given the recognized motivation to shift
blame onto others.” Id. at 136. A review of the record
in this case demonstrates both how “devastating” and
how “suspect” such accusations can be. Id.
First, the accusations were devastating: the government made the evidence of multiple previous murders the centerpiece of its case for the death sentence.
Nearly every page of the transcript of the government’s summation argument in the third phase of the
trial focuses on these unconfronted accusations of murder. See, e.g., J.A. 3402 (“[Umaña] had killed before”);
J.A. 3403 (“[Umaña] had earned those two letters on his
forehead and he earned them by killing”); J.A. 3404
(“[Umaña] … had killed before. And he was going to
70a
kill again.”); J.A. 3405 (claiming to jury that Umaña
thought “I’ve done this before. I know what I have to
do.”); J.A. 3406 (claiming to jury that Umaña thought “I
know they were dead because I know what dead is.
I’ve killed before.”); J.A. 3407 (“We know he’s killed before.”); J.A. 3408 (“Does that [previous murder] story
sound familiar? … Sure it sounds familiar because
that’s exactly what happened later in Greensboro.”);
J.A. 3409 (arguing that Umaña thought to himself, “I’m
Wizard from MS-13. We need to go out and we need to
take care … of the people in [Lemon Grove Park]. And
that’s exactly what he did.”); J.A. 3411 (pointing to “the
two that you heard a lot of evidence on, the two additional—the three additional murders”).
The record also reveals that the accusations,
though “devastating,” were “suspect.” Bruton, 391
U.S. at 136. For the first Los Angeles murder incident,
in which a group of MS-13 members exited a car to
shoot two teenagers who had flashed rival gang signs,
there is conflicting eyewitness evidence on Umaña’s
role. Two eyewitnesses with no role in the altercation
stated to police that the shooter was the driver of the
car. However, three of Umaña’s fellow gang-members
who were in the car with him claimed that Umaña was
the shooter, but also stated that Umaña was not the
driver. Thus, for this murder allegation, the only evidence linking Umaña to the crime was given by three
potential co-defendants with a strong incentive to push
the blame onto Umaña. Neutral eyewitnesses, meanwhile, suggest that Umaña was not the shooter.
The only other inculpatory evidence for these two
murders is from Umaña himself. Police officers from
Los Angeles who were investigating these murders interviewed Umaña in North Carolina after Umaña had
been arrested for the murder of the Salinas brothers.
71a
These officers told Umaña that he might as well admit
to the Los Angeles murders because, given that he was
facing a mandatory life sentence for the North Carolina
murders, it would make no difference if he claimed responsibility for the prior crimes. After denying that he
was responsible for the prior murders at length, Umaña
eventually gave in to the interrogation, albeit with an
equivocal, unclear statement:
Officer: Did you shoot him? Tell me, tell me
face to face. Did you shoot him?
Umaña: Say that, that I did it. Right? I really
didn’t do it, right?
Officer: You did it?
Umaña: To say it like that.
Officer: No. Not just to say it, but to say the
truth
…
Umaña: To say the truth? … [laughs]
Officer: You did it? Not out of meanness, but
because you thought they were, were gang
members.
Umaña: Ah …
Officer: Is that right?
Umaña: Yes. … And that is[,] that is the point
that mattered to him? [Laughs]?
J.A. 4382–83.
Umaña was also linked to a third murder that occurred in Lemon Grove Park. Two pieces of evidence
link Umaña to this crime. First, the same gun was used
in this murder as was used in the previous Los Angeles
72a
murders, at which Umaña was present. This evidence
is weak in light of expert testimony during trial suggesting that MS-13 gang members share their firearms
as a matter of course. That said, Umaña admits to having been present at both murders, which gives more
weight to the fact that the same murder weapon was
used. However, while “there is no evidence that anyone else was present at both murder sites,” Maj. Op. at
51, there were apparently one or two dozen people at
the scene of the second murder, and the identities of
these people are unknown. Thus, Umaña was present
at both murders, but it is speculation to conclude that
no one else was as well.
In addition to this circumstantial evidence, there is
weak eye-witness evidence that implicates Umaña in
the Lemon Grove Park murder. The witness, a member of a rival gang, twice picked Umaña out of a photo
lineup. In 2005, the witness chose Umaña’s picture out
of a six-person photo lineup, but only concluded that “I
remember seeing this guy but I’m not sure if he is the
one that came that day to the park.” J.A. 4060. Three
years later, the witness again picked Umaña’s picture
out of a lineup, but again expressed uncertainty, noting
that “I’m not 100% sure,” because “everything happened so fast.” J.A. 4057. The witness clarified that
“what I saw was the gun and after that I began to run.”
Id. This witness testified during sentencing, where he
noted that the shooting occurred after 9 p.m. on a basketball court where the overhead lights had been
turned off. Thus, while Umaña has been linked to another Los Angeles murder, the best evidence of this
link is from a witness who saw the shooter from twenty
feet away at night with at best partial lighting. Further, this witness admitted that he only saw a gun before taking off running in the opposite direction. This
73a
witness has never been able to make an identification
nearing 100% certainty.
Finally, and most problematic, the government introduced evidence linking Umaña to murders in El Salvador, even though this evidence had been ruled as inadmissible and even though Umaña had no chance to
confront his accusers. At sentencing, the government
sought to introduce evidence that Umaña had committed violent crimes, including homicide, in El Salvador.
Specifically, the government wanted to call an El Salvadoran prosecutor to testify. The district court denied
the government’s motion, concluding that the evidence
“lacks sufficient indicia of reliability” and that “its probative value is outweighed by a danger of unfair prejudice.” J.A. 3232.
Incredibly, in spite of the district court’s clear ruling, the government introduced a transcript as evidence in which a United States law enforcement officer
is quoted as saying “I know he’s done stuff in El Salvador,” J.A. 4301, “[w]e know … that they were looking
for you for homicide also in El Salvador,” J.A. 4316, and
“[w]e know that he’s, he’s a violent, violent guy. We
know that he’s wanted in El Salvador … for many violent crimes … I know he’s a shooter. I know he’s an enforcer. I know he’s a gangster,” J.A. 4315. Through an
evidentiary back door left wide open, the government
snuck in testimony that “lacked consistency and credibility,” per the district court, but had enough prejudicial value that the government made its entire case at
sentencing about Umaña’s past uncharged homicidal
conduct.
In sum, the evidence linking Umaña to previous
murders was as powerful as it was problematic. For
both the Los Angeles and El Salvador murders, there
74a
was not enough evidence for prosecutors to bring a case
or sustain a conviction in stage one of an FDPA trial.
Unfazed, the government simply bided its time until
the third stage of the trial, when, per the district
court’s ruling and the majority opinion today, important constitutional safeguards disappear. Umaña
filed a timely objection at sentencing, arguing that his
Sixth Amendment rights were violated.
II.
Turning to the merits, an understanding of the history and purpose of the Confrontation Clause, as well as
an analysis of the Supreme Court’s recent jurisprudence
on the Confrontation Clause and Sixth Amendment
factfinding, shows that the government violated Umaña’s constitutional rights when he was sentenced to
death without a chance to confront his accusers. District courts cannot dodge the constitutional guarantee of
confrontation by splitting a capital trial into three segments and waiting until the third segment to strip a defendant of his Sixth Amendment rights. Further, because the Sixth Amendment right at issue here—the
right of cross-examination—is “the constitutionally prescribed method of assessing reliability,” Crawford v.
Washington, 541 U.S. 36, 62 (2004), it is especially offensive to the Constitution to deny a defendant this right
during the very stage of the proceedings in which a jury
must decide whether he deserves to live or be killed.
I begin with the text of the Sixth Amendment, but
conclude that the words themselves do not settle the
matter. “In all criminal prosecutions, the accused shall
enjoy the right … to be confronted with the witnesses
against him.” U.S. Const. amend. VI. Because the
FDPA did not exist at the time of the founding, the
Sixth Amendment is silent on the distinction between
75a
different stages of FDPA trials. While the right applies to all criminal prosecutions, the text does not give
guidance on when a criminal prosecution ends.
An analysis of the history leading to the Sixth
Amendment is more helpful. The historical developments that led to the Confrontation Clause weigh in favor of its application at all stages of FDPA trials. In
the leading case on modern Confrontation Clause doctrine, the Supreme Court explained that the Confrontation Clause right “is most naturally read as a reference
to the right of confrontation at common law, admitting
only those exceptions established at the time of the
founding.” Crawford, 541 U.S. at 54. The FDPA sentencing regime did not exist at the time of the founding,
nor was there an analogous system. Rather, at the
time when the Confrontation Clause was crafted, a
death sentence flowed automatically from convictions
for certain capital felonies. See United States v. Fields,
483 F.3d at 370 (Benavides, J., dissenting); see also 1
Stat. 112–19 (defining a series of federal crimes and
mandating a death sentence upon conviction for certain
capital crimes); Rory K. Little, The Federal Death
Penalty: History and Some Thoughts About the Department of Justice’s Role, 26 Fordham Urb. L.J. 347,
360-65 (1999). Thus, there was no separate hearing to
determine whether death was appropriate. See Woodson, 428 U.S. at 289 (1976). When capital trials are
structured in this way, no defendant receives a death
sentence after a trial in which he is denied the Confrontation Clause right, nor is any defendant sentenced to
death on the basis of unconfronted accusations of prior
crimes. “By the time the Bill of Rights was adopted,”
“the jury determined which homicide defendants would
be subject to capital punishment by making factual determinations.” Ring, 536 U.S. 599 (quoting Walton v.
76a
Arizona, 497 U.S. 639, 710–11 (Stevens, J., dissenting)).
These factual determinations could only be made in
proceedings in which the Confrontation Clause applied
in full force. Thus, at the time of the founding, there
was no exception to the Confrontation Clause right for
capital sentencing.2
Crawford lends further support to the idea that,
based on the purpose of the Confrontation Clause, the
right to confront adverse witnesses extends to every
stage of an FDPA trial. In discussing the history of the
clause, the Supreme Court noted that the common law
right to confrontation developed in response to abuses
in certain infamous trials in England. In these notorious cases, defendants were convicted, and sometimes
executed, without the right to examine their accusers.
Crawford, 541 U.S. at 43–45. One of “[t]he most notorious instances” of such abuses occurred in the treason
trial for Sir Walter Raleigh. Id. at 44. In concluding
that a judge’s reliability ruling cannot substitute for the
right to confrontation, the Court noted that “[i]t is not
plausible that the Framers’ only objection to the trial
was that Raleigh’s judges did not properly weigh [reliability] factors before sentencing him to death. Rather,
the problem was that the judges refused to allow Raleigh to confront [the key government witness] in
court.” Id. (emphasis added). Thus, part of the reasoning motivating Crawford was the desire to reject any
interpretation of the Confrontation Clause which would
lead to the same abuses seen in the Raleigh trial. Further, the Court emphasized that what made that infa2
In non-capital sentencing, meanwhile, hearsay testimony
was often used and proceedings were more informal, suggesting a
distinction between capital and non-capital sentencing. John G.
Douglass, Confronting Death: Sixth Amendment Rights at Capital
Sentencing, 105 Colum. L. Rev. 1967, 2016–17 (2005).
77a
mous case so odious was the lack of a confrontation
right before Raleigh was sentenced to death.
Mr. Umaña now finds himself in the same position
as Raleigh, stripped of his right to confront face-to-face
those whose words would condemn him to die. Powerful accusations were made against Umaña, and though
these accusations were not the basis for the initial
guilty verdict, they ultimately helped form the basis for
his capital sentence. Further, like Raleigh, Umaña
lacked the opportunity to confront his accusers before
the death sentence was issued. The distinction between the cases is that Sir Walter Raleigh was sentenced to death after a unitary proceeding in which
guilt and penalty were decided simultaneously. In
Umaña’s case, meanwhile, the judge trifurcated the trial and ensured that any constitutional protections had
been severed by the time of stage three, in which a jury
weighs whether death is the appropriate sentence. If
the judicial proceeding that led to Sir Walter Raleigh’s
execution is unconstitutional, as it no doubt is, then it is
unclear why the same situation would lead to a different result merely because the court artificially cabins
the proceeding in which the constitutional abuse occurs.
Recent Supreme Court case law on Sixth Amendment rights in sentencing further buttresses this view.
In Ring v. Arizona, the Supreme Court considered
whether the right to jury factfinding applies for aggravating factors necessary to apply a death sentence,
which would be the equivalent of the second stage of an
FDPA trial. 536 U.S. at 608–09. The Court held “that
the Sixth Amendment applies to” this stage of death
sentencing: defendants have the right to jury factfinding for such factors. Id. at 609. Granted, Ring does not
control here, since this case concerns the introduction
of unconfronted testimony in the third stage of FDPA
78a
trials. The majority finds this distinction key, arguing
that once a defendant is found death-eligible in stage
two of an FDPA trial, “the jury exercises discretion in
selecting a life sentence or the death penalty, and any
facts that the jury might find during that phase do not
alter the range of sentences it can impose.” Maj. Op. at
48–49. This is incorrect. Under the FDPA, a jury cannot impose a death sentence until it finds that “all the
… aggravating factors found to exist sufficiently outweigh all the mitigating factors.” 18 U.S.C. § 3593(e).
Only when a jury finds that aggravating factors sufficiently outweigh the mitigating factors may it impose a
death sentence under the FDPA. Thus, while stage
three of FDPA trials involves some jury discretion, juries must nonetheless make certain factual findings in
this final stage before a death sentence can be imposed.
Put another way, the jury’s burden in stage
three—a finding that the aggravating factors sufficiently outweigh the mitigating factors—“is not optional.”
Green, 372 F. Supp. 2d at 177. “Because we will never
know exactly how each factor influences the jurors’ ultimate punishment determination, logic dictates that all
aggravating factors—together—be considered legally
essential to the punishment.” Id. As in Green, “the
government’s argument that non-statutory factors are
not essential is disingenuous; if the government does
not require additional evidence to convince the jury to
vote for death, why is it invoking non-statutory factors
at all?” Id. In this case, the proof is in the pudding: the
government pointed to the past murders on nearly every page of the transcript of its closing argument at sentencing. Without these past murders, it is doubtful that
the government could meet the burden necessary to
apply the death penalty under the FDPA. As such, the
permissible range of sentencing is increased in this
79a
stage, indicating that Sixth Amendment rights do apply. See also Sablan, 555 F. Supp. 2d at 1221 (“[U]nder
the structure of the FDPA, it is not the finding of a
statutory aggravating factor that actually increases the
punishment. The fact that actually increases the punishment is the existence of all the aggravating factors
found by the jury (taken together).”).
The majority argues that Williams v. New York,
337 U.S. 241 (1949), a pre-Crawford, pre-Ring Supreme
Court case, directly disposes of the issue before us.
That case is neither on point nor persuasive, and in any
event, its power is dubious in light of more recent Supreme Court jurisprudence. In Williams, the Supreme
Court upheld a death sentence that relied in part on a
probation report that implicated the defendant in prior
crimes. Id. at 243. The Court continues to cite Williams for the proposition that sentencing decisions contain an element of discretion and can rely on evidence
that would not be admissible at trial. See, e.g., Pepper
v. United States, 131 S. Ct. 1229, 1235 (2011). We have
cited to Williams for the similar concept that sentencing courts “must have recourse to a much broader array of information than we allow the trier of fact to consider in determining a defendant’s guilt.” Powell, 650
F.3d at 391–92.
Nonetheless, Williams is not controlling, because
that case is a pre-incorporation, pre-FDPA case concerning a state death sentence. That is, Williams was
not a Confrontation Clause case at all, but rather a Due
Process Clause case, and it considered a state capital
sentencing regime, not the federal one used for Mr.
Umaña. Williams, 337 U.S. at 252. Nothing in the
holding of Williams dictates that the Confrontation
Clause does not apply to the third stage of FDPA trials.
Rather, the holding in Williams merely means that it
80a
does not offend due process for a state judge to rely on
unconfronted hearsay in death sentencing. This is different from a ruling that a far more specific clause of
the constitution permits a jury to rely on such evidence
in a proceeding to decide whether the death sentence
can be applied. Further, the decisions cited above—
concerning the Sixth Amendment right to factfinding at
sentencing, death penalty procedure, and the Confrontation Clause—all suggest that even if Williams is not
dead letter, it should not be extended to apply to FDPA
proceedings on Sixth Amendment grounds.
Even though Williams is not on point, the majority
nonetheless argues that its spirit is intact. That is, Williams embodies the idea that the Confrontation Clause
should not apply because “modern concepts individualizing punishment have made it all the more necessary
that a sentencing judge not be denied an opportunity to
obtain pertinent information by a requirement of rigid
adherence to restrictive rules of evidence.” Id. at 247.
This argument is internally consistent, but it elides
a far more important principle of capital sentencing,
which is the need for reliability. As the Supreme Court
has noted, death is such a weighty punishment and so
different from a prison term that “there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment.”
Woodson, 428 U.S. at 305 (plurality opinion). Thus,
greater access to information for the sentencing court
is but one principle of death sentence jurisprudence—a
principle that gives way to the more important principle that a death sentence be based on accurate factfinding. Further, as discussed above, the Supreme Court
has explained that “the Confrontation Clause’s very
mission … is to advance the accuracy of the truthdetermining process in criminal trials.” United States
81a
v. Inadi, 475 U.S. 387, 396 (1986) (internal quotation
marks and citations omitted). Taken together, the Supreme Court’s parallel jurisprudence on the Confrontation Clause and on the need for reliability in death sentences demonstrates why Umaña’s sentence must be
reversed. Death sentences must stand on reliable
ground, and the Confrontation Clause is “the constitutionally prescribed method of assessing reliability.”
Crawford, 541 U.S. at 62.
Further, in striking the balance between the desire
for more evidence and the unquestionable need for reliability in death sentences, it is important to note that
the Confrontation Clause right will not only enhance
reliability—it will do so at a small practical cost, contrary to the concerns voiced by the majority. The majority frets that if we recognize Mr. Umaña’s Sixth
Amendment rights through each stage of an FDPA trial, we would “‘endlessly delay criminal administration
in a retrial of collateral issues.’” Maj. Op. at 48 (quoting
Williams, 337 U.S. at 250). To the contrary, the Confrontation Clause applies only to testimonial evidence,
and would only be implicated in a narrow range of aggravating factors, suggesting that recognizing Mr.
Umaña’s Sixth Amendment right will not “endlessly
delay criminal administration of collateral issues.” Maj.
Op. at 48 (quoting Williams, 337 U.S. at 250). As recognized in Crawford, the Confrontation Clause only
reaches “material such as affidavits, custodial examinations, prior testimony that the defendant was unable to
cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially.” Crawford, 541 U.S. at 51. Even testimonial evidence continues to be admissible so long as the defendant has a prior chance to cross-examine the witness and
the witness is unavailable. Id. at 51–52. Thus, the vast
82a
majority of the evidence in Mr. Umaña’s case, and in
most FDPA trials, would be unaffected by recognizing
Mr. Umaña’s Sixth Amendment right. Only for a narrow range of aggravating factors, related to uncharged
prior crimes, would the Confrontation Clause be implicated, and even then only some of the time.
In any case, given that the prosecution made Mr.
Umaña’s uncharged prior crimes the centerpiece of its
capital case in the final stage of his FDPA trial, I cannot accept the majority’s conclusion that the unconfronted evidence used against Mr. Umaña was a mere
“collateral issue[].” To the contrary, the government’s
entire case for the death penalty relied on the accusation that Umaña “had killed before.” J.A. 3404. In sum,
Mr. Umaña’s Sixth Amendment right to confrontation
provides enormous benefits in terms of reliability in
capital sentencing, and this benefit comes at a small
cost—limiting only very specific types of aggravating
information.
The majority supports its ruling by pointing to “the
policy of presenting full information to sentencers,”
Maj. Op. at 47, but this reasoning creates an evidentiary loophole that turns FDPA trials upside-down.
Unquestionably, a sentencing court must have access to
information not relevant to guilt in order to ensure that
punishments are individualized. While this general
proposition is valid, applying it blindly in this case is
problematic because it lumps together evidence like a
defendant’s 4th grade report card with evidence of
murder. In a typical criminal trial, the most serious
crime gets proven at a guilt trial, where the full panoply of constitutional and evidentiary rights apply. In
the later sentencing stages, softer evidence, both negative and positive, is introduced, to allow for individualization of punishment. This structure makes sense: the
83a
more serious an allegation, the more serious the protections given to a defendant.
Under the majority’s ruling, this structure is
flipped. It would have been outrageous for the government to convict Umaña for the North Carolina murders without giving him his Sixth Amendment rights.
Yet, the centerpiece of the government’s case for the
death sentence was a series of uncharged murders that
were in many ways more serious than the North Carolina incident. The third stage of an FDPA trial is typically reserved for evidence about the victims’ families
or about the defendant’s elementary school performance or Boy Scout record. The jury must weigh these
soft, more subjective factors to fit the punishment to
the crime. The evidence we consider here is so much
more severe than a 4th grade report card that it is different in kind, not degree. When a jury considers a Boy
Scout record, the truthfulness and reliability of the evidence is a secondary matter at best. The more difficult
task for this type of information is fitting it into a cohesive, complete picture of the defendant. The weight to
be accorded to the evidence is the predominant inquiry,
and its reliability is a lesser concern. In contrast, when
a jury considers evidence of three additional murders,
the reliability of the evidence is the predominant concern, whereas the weight to accord such evidence is
much easier to discern. That is, it is easy to know how
much weight to accord evidence of past murders because it completely overwhelms evidence like an elementary school report card, as the government’s closing argument demonstrates. Instead, for this type of
evidence the most important inquiry is as to its truth
and reliability. This distinction again shows why the
district court committed legal error. The government
is essentially exploiting the district court’s ruling to
84a
have a second murder trial, only without the restrictions that the Supreme Court mandated in Crawford and Ring. The majority’s ruling today lets the tail
wag the dog, and it will encourage strategic posturing
by prosecutors to punish defendants for crimes that
could never be found beyond a reasonable doubt by a
rational factfinder.
III.
The majority today strips a defendant of his Sixth
Amendment right to confront his accusers. Further, it
denies this right in a proceeding in which a jury must
decide whether a human being is fit to live. In this, the
most momentous decision a jury can make, the majority
would do away with the “constitutionally prescribed
method of assessing reliability” of evidence. Crawford,
541 U.S. at 62.
Umaña is being sent to his death based on accusations by self-interested accomplices—self-interested
accomplices whose testimony, at least in part, was contradicted by independent witnesses. This illustrates
the Supreme Court’s admonition that accusations from
co-defendants facing the same punishment are “devastating to the defendant.” Bruton, 391 U.S. at 136. “The
unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was
against such threats to a fair trial that the Confrontation Clause was directed.” Id. Because I conclude that
the Confrontation Clause applies at every stage of an
FDPA trial, not just the first two stages, and because I
conclude that it is both wrong and unconstitutional for a
death sentence to rest on unconfronted accusatory evidence, I dissent.
85a
APPENDIX B
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
No. 3:08CR134-RJC
UNITED STATES OF AMERICA,
v.
ALEJANDRO ENRIQUE RAMIREZ UMANA,
April 19, 2010
ORDER
*
*
*
ROBERT J. CONRAD, JR., Chief Judge:
THIS MATTER is before the Court on the “Defendant’s Motion to Strike Non-statutory Aggravating
Factor and to Exclude Evidence of Unadjudicated
Criminal Acts During Penalty Phase of Trial” (Doc. No.
483) filed April 24, 2009; the “Defendant’s Motion to
Strike Non–Statutory Aggravating Factors from Notice of Intent to Seek the Death Penalty” (Doc. No. 488)
filed April 24, 2009; the government’s Consolidated Response (Doc. No. 503) filed May 8, 2009; the defendant’s
“Motion to Strike the Non–Statutory Aggravating Factor of Future Dangerousness from the Notice of Intent
to Seek the Death Penalty” (Doc. No. 968) filed April 6,
2010; and the government’s Response (Doc. No. 991)
86a
filed April 13, 2010. For the reasons stated below, the
Court GRANTS IN PART and DENIES IN PART
the defendant’s motion to strike non-statutory aggravating factors (Doc. No. 488) and DENIES the defendant’s remaining motions (Doc. Nos. 483 & 968).
I.
BACKGROUND
The defendant is charged in a Superseding Indictment with multiple federal offenses arising out of his
alleged affiliation with La Mara Salvatrucha, also
known as the MS–13 gang (hereafter “MS–13”). Count
1 of the Indictment charges the defendant with a RICO
conspiracy, in violation of 18 U.S.C. § 1962(d). As an
overt act in furtherance of this conspiracy, the Indictment alleges that on December 8, 2007, the defendant
murdered two individuals, Ruben Garcia Salinas and
Manuel Garcia Salinas, in a restaurant in Greensboro,
North Carolina. These murders are also charged separately in Counts 22 and 24 of the Indictment as murder
in aid of racketeering, in violation of 18 U.S.C.
§ 1959(a)(1), and in Counts 23 and 25 as use of a firearm
during and in relation to a crime of violence resulting in
death, in violation of 18 U.S.C. § 924(j). In the event
the defendant is found guilty of Counts 22, 23, 24, or 25,
the government has filed a Notice of Intention to Seek
the Death Penalty (Doc. No. 275), as required by the
Federal Death Penalty Act (“FDPA”), 18 U.S.C. § 3591
et seq. In its Notice, the government lists several aggravating factors it contends justify a sentence of
death. Several of these are enumerated aggravating
factors listed in § 3592(c) (the “statutory aggravating
factors”). The government has also given notice of its
intent to prove additional aggravating factors which
are not enumerated in § 3592(c) (the “non-statutory aggravating factors”), including the following:
87a
1.
Gang Motivated Killing.
The defendant killed Ruben Garcia Salinas to protect and maintain the name and reputation of the
criminal enterprise MS–13, and to advance his position and reputation within the criminal enterprise.
* * *
3. Callous Disregard for the Severity of the Offense.
Defendant has demonstrated a callous disregard for
the severity of the offense, as evidenced by his
words and actions following the murder of Ruben
Garcia Salinas.
4. Participation in Additional Uncharged Murders
and Other Acts of Violence.
Apart from the offenses charged in the First Superseding Bill of Indictment, defendant has been
involved in other serious acts of violence, which are
not reflected in his criminal record. Including but
not limited to:
a. On or about July 27, 2005, in Los Angeles,
California, defendant knowingly, intentionally, and
unlawfully killed Jose Herrera and Gustavo Porras.
b. On or about September 28, 2005, in Los
Angeles, California, defendant knowingly, intentionally, and unlawfully participated and aided and
abetted the killing of Andy Abarca.
5.
Future Dangerousness.
Defendant is likely to commit criminal acts of violence in the future which would constitute a continuing and serious threat to the lives and safety of
others, as evidenced by at least one or more of the
following:
88a
a.
Continuing Pattern of Violence.
Defendant has engaged in a continuing pattern
of violence, attempted violence, and threatened violence, including but not limited to the crimes alleged against defendant in the First Superseding
Bill of Indictment.
b. Low Rehabilitative Potential.
Defendant poses a future danger to the lives
and safety of other persons as demonstrated by his
lack of rehabilitation after prior incarceration, his
pattern of criminal conduct, and, his allegiance to
and membership in MS–13.
c.
Lack of Remorse.
Defendant has never expressed any remorse
for killing Rubin Garcia Salinas as indicated by defendant’s statements to fellow gang-members during the course of and following the offenses alleged
in the First Superseding Bill of Indictment.
d. Gang Membership.
Defendant has demonstrated an allegiance to
and active membership in MS–13, a violent criminal
enterprise.
(Doc. No. 275 at 4–5).1 On April 24, 2009, the defendant
filed two motions to strike non-statutory aggravating
factors from the government’s Notice. (Doc. Nos. 483
& 488). Therein the defendant moves to strike all his
non-statutory aggravating factors as unauthorized by
the FDPA. The defendant also moves to strike on various other grounds the aggravating factors Uncharged
1
Each aggravating factor is also re-alleged with respect to the
other murder victim, Manuel Garcia Salinas. (Doc. No. 275 at 5–8).
89a
Murders and Other Violent Conduct, Gang Motivated
Killing, and Callous Disregard for the Severity of the
Offense. Later, on April 6, 2010, the defendant filed a
third motion to strike the non-statutory aggravating
factor Future Dangerousness. (Doc. No. 968).
II. LEGAL FRAMEWORK
A. Capital Sentencing
The FDPA directs that sentencing in a federal capital case be performed in two discrete phases. The first
phase, “eligibility,” requires the jury to determine
whether the defendant qualifies for the death penalty,
while the second phase, “selection,” requires a decision
as to whether a particular defendant “should in fact receive that sentence.” Tuilaepa v. California, 512 U.S.
967, 972, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994). Both
the eligibility and selection phases are conducted in a
special sentencing hearing mandated by the FDPA. 18
U.S.C. § 3593(b). At this hearing, “information may be
presented as to any matter relevant to the sentence, …
regardless of its admissibility under the rules governing admission of evidence at criminal trials except that
information may be excluded if its probative value is
outweighed by the danger of creating unfair prejudice,
confusing the issues, or misleading the jury.” 18 U.S.C.
§ 3593(c). However, the process must be “neutral and
principled so as to guard against bias or caprice in the
sentencing decision.” Tuilaepa, 512 U.S. at 973, 114
S.Ct. 2630 (citing Gregg v. Georgia, 428 U.S. 153, 189, 96
S.Ct. 2909, 49 L.Ed.2d 859 (1976)).
To be eligible for the death penalty in a homicide
case, the jury first must find that the defendant acted
intentionally in killing another person. 18 U.S.C.
§ 3591(a)(2). Next, it must find beyond a reasonable
90a
doubt the presence of at least one statutory aggravating
factor alleged in the government’s Notice. 18 U.S.C.
3593(e)(2). If these findings are made, the defendant is
eligible for the death penalty, and the jury proceeds to
the selection phase. During this phase, the jury may
consider the presence of any statutory or non-statutory
aggravating factor for which the government has given
notice. 18 U.S.C. § 3592(c). Each juror then weighs aggravating factors, found unanimously beyond a reasonable doubt, against mitigating factors, found by that juror by a preponderance of evidence.
18 U.S.C.
§ 3593(d). The jury may recommend the death penalty
if it unanimously concludes that “all the aggravating
factor or factors found to exist sufficiently outweigh all
the mitigating factor or factors found to exist …, or, in
the absence of a mitigating factor, … the aggravating
factor or factors alone are sufficient to justify a sentence
of death.” 18 U.S.C. § 3593(e).
B. Constitutional Protections
The Fifth, Sixth, and Eighth Amendments of the
Constitution require that a capital sentencing scheme
“‘suitably direct[] and limit[]’” a sentencing jury’s discretion “‘so as to minimize the risk of wholly arbitrary
and capricious action.’” Lewis v. Jeffers, 497 U.S. 764,
774, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990) (quoting
Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 49
L.Ed.2d 859 (1976)). Pursuant to these protections, the
Court will not permit the jury to consider aggravating
factors that are impermissibly vague, overbroad, or
otherwise fail to “‘genuinely narrow the class of persons eligible for the death penalty.’” Arave v. Creech,
507 U.S. 463, 474, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993)
(quoting Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct.
2733, 77 L.Ed.2d 235 (1983)); accord Maynard v. Cart-
91a
wright, 486 U.S. 356, 364, 108 S.Ct. 1853, 100 L.Ed.2d
372 (1988) (invalidating an aggravating factor that “an
ordinary person could honestly believe” applied to every eligible defendant). In sum, the Court must ensure
that aggravating factors put before a sentencing jury
permit it “to make a principled distinction between
those who deserve the death penalty and those who do
not.” Jeffers, 497 U.S. at 776, 110 S.Ct. 3092.
III. DISCUSSION
A. FDPA Authorization of Non–Statutory Aggravating Factors
At the outset, the defendant challenges the government’s right to present evidence2 of any nonstatutory aggravating factor during the selection phase
of his sentencing. Section 3591(a) of the FDPA directs
the jury to “consider[] … the factors set forth in section
3592” when deciding whether to impose the death penalty. The defendant argues that because § 3591(a) references only the factors “set forth” in § 3592, it authorizes the jury to consider only the statutory aggravating
factors explicitly listed in that section. Thus, the
FDPA is vague as to whether non-statutory aggravating factors are ever proper to consider. In light of this
vagueness, the defendant argues that the rule of lenity3
2
The FDPA conspicuously uses the term “information” rather that “evidence,” perhaps because the Federal Rules of Evidence are explicitly rendered inapplicable to capital sentencing
proceedings. 18 U.S.C. § 3593(c). However, because the parties
have often used the term “evidence” in their briefing of these issues, the Court will use that term throughout this Order.
3
The rule of lenity requires a court to resolve any ambiguity
in a criminal statute in favor of the defendant. United States v.
Munn, 595 F.3d 183, 194 (4th Cir.2010) (citing United States v.
Santos, 553 U.S. 507, 128 S.Ct. 2020, 2025, 170 L.Ed.2d 912 (2008)).
92a
should compel the Court to construe the FDPA to limit
the government’s Notice and subsequent proof to the
statutory aggravating factors enumerated in
§ 3592(c)(1)-(16).
The defendant’s argument fails because the FDPA
is not vague in this regard. Section 3592(c) contains an
explicit “catch-all” provision authorizing the jury to
consider “any other aggravating factor for which notice
has been given….” Moreover, section 3593(d) contains
identical language instructing the jury to consider the
presence of both statutory aggravating factors “and
any other aggravating factor for which notice has been
provided,” i.e., any non-statutory aggravating factor
alleged in the government’s Notice. Reading the
FDPA as a whole, it is clear that the “set forth” language in § 3591(a) authorizes the consideration of both
statutory and non-statutory aggravating factors.
Moreover, any contrary construction of the FDPA
would render several of its other provisions essentially
meaningless. To the extent possible, a statute should
be read so that no part is rendered superfluous or inoperable. Shipbuilders Council of America v. U.S. Coast
Guard, 578 F.3d 234, 244 (4th Cir.2009); Zheng v. Holder, 562 F.3d 647, 654 (4th Cir.2009). Other courts have
considered the arguments raised by the defendant and
reached the same conclusion. See United States v. Le,
327 F.Supp.2d 601, 614 (E.D.Va.2004); United States v.
Nguyen, 928 F.Supp. 1525, 1536 (D.Kan.1996). Thus,
the Court finds that the FDPA generally authorizes a
jury to consider any non-statutory aggravating factor
for which notice has been provided.
B. Uncharged Murders and Other Violent Conduct
The defendant lodges several objections to the nonstatutory aggravating factor “Uncharged Murders and
93a
Other Violent Conduct,” which alleges the defendant’s
participation in additional uncharged murders and other
acts of violence. First, the defendant makes a constitutional challenge under the Fifth, Sixth, and Eighth
Amendments to the use of uncharged criminal conduct
as an aggravating factor. Next, the defendant argues
that because the FDPA includes certain types of prior
convictions as statutory aggravating factors, Congress
intended to exclude unadjudicated criminal conduct
from consideration. Finally, as an additional ground to
his motion to strike, the defendant claims evidence of
uncharged acts should be excluded from his sentencing
hearing because the probative value of such evidence is
outweighed by its likelihood to confuse or mislead the
jury.
1.
Constitutionality
In support of his constitutional challenge under the
Fifth, Sixth, and Eighth Amendments, the defendant
makes two separate arguments: (1) that it is unconstitutional to try uncharged conduct under the relaxed evidentiary standard mandated by the FDPA; and (2) having already convicted the defendant of capital offenses,
the jury will be unable to remain impartial when determining whether he committed the uncharged conduct.
Despite these concerns, the established law in the
Fourth Circuit is that non-statutory aggravating factors alleging uncharged criminal conduct do not violate
the Constitution so long as the jury is properly instructed that it must find such conduct unanimously
and beyond a reasonable doubt. See United States v.
Higgs, 353 F.3d 281, 323 (4th Cir.2003); see also United
States v. Cisneros, 363 F.Supp.2d 827, 838–39
(E.D.Va.2005) (citing Higgs, denying a motion to strike
aggravating factors alleging uncharged criminal con-
94a
duct); United States v. Beckford, 964 F.Supp. 993, 1002–
03 (E.D.Va.1997) (holding that due process does not require a defendant’s sentencing hearing to be governed
by the Federal Rules of Evidence, even when allegations of unadjudicated conduct are present).
Here, the defendant is alleged to have committed,
or aided and abetted in the commission of, uncharged
acts of violence including participation in the murder of
several individuals. Critically, the government’s allegations attribute these crimes to the defendant himself,
not MS–13. Cf. United States v. Rivera, 405 F.Supp.2d
662, 670–71 (E.D.Va.2005); United States v. Grande, 353
F.Supp.2d 623, 638 (E.D.Va.2005) (related cases, both
striking non-statutory aggravating factors attempting
to impute to the defendants acts of violence committed
by their affiliated gang). Thus, the government’s nonstatutory aggravating factor alleging uncharged criminal conduct does not violate the defendant’s Fifth,
Sixth, and Eighth Amendment rights.
2.
FDPA Authorization
Next, the defendant argues that in enacting statutory aggravating factors related to six categories of
prior conviction,4 Congress intended for the FDPA to
exclude all uncharged criminal conduct from the jury’s
consideration. This proposition is based upon the maxim of statutory construction expressio unius est exclusio alterius, meaning “that the express designation of
one thing may properly be construed to mean the exclusion of another.” Volvo Trademark Holding Aktie4
See 18 U.S.C. § 3592(c)(2) (violent felony involving firearm);
(c)(3) (offense for which death or life imprisonment was authorized); (c)(4) (two violent felony offenses); (c)(10) (two felony
drug offenses); (c)(12) (serious federal drug offense); (c)(15) (sexual
assault or child molestation).
95a
bolaget v. Clark Mach. Co., 510 F.3d 474, 483 (4th
Cir.2007) (quoting Volvo Trademark Holding Aktiebolaget v. AIS Constr. Equip. Corp., 416 F.Supp.2d 404,
411 (W.D.N.C.2006)). “The maxim requires great caution in its application, and in all cases is applicable only
under certain conditions.” STATUTES AND STATUTORY
CONSTRUCTION § 47:25 (Norman J. Singer & J.D.
Shambie Singer eds., 7th ed. 2007) (quotations omitted).
One such limitation of the maxim is that it should not be
applied if it creates “contradiction” within a statute. Id.;
see also U.S. Dept. of Labor v. Bethlehem Mines Corp.,
669 F.2d 187, 197 (4th Cir.1982) (“The maxim is to be
applied with great caution and is recognized as unreliable.”).
Here, the defendant’s preferred construction of the
FDPA would contradict a number of its provisions.
Section 3592(c) itself specifically allows the sentencing
jury to consider not only statutory aggravating factors
but “any other aggravating factor for which notice has
been given.” Similarly, the jury is instructed to return
findings for any statutory aggravating factor “and any
other aggravating factor for which notice has been provided….” 18 U.S.C. § 3593(d). These open-ended provisions would be thwarted by applying a literal interpretation to the categories of prior conviction enumerated as statutory aggravating factors. Noting this, the
Fourth Circuit has rejected the defendant’s line of reasoning. See Higgs, 353 F.3d at 322–23. Thus, the Court
concludes that by listing six categories of prior conviction as statutory aggravating factors, Congress did not
intend for the FDPA to preclude allegations of uncharged criminal conduct in non-statutory aggravating
factors.
96a
3.
Admissibility of Evidence
Finally, the defendant argues that any evidence of
uncharged violent acts is inadmissible at his sentencing
hearing under 18 U.S.C. § 3593(c), which directs the
Court to exclude evidence “if its probative value is
outweighed by the danger of creating unfair prejudice,
confusing the issues, or misleading the jury.” The defendant claims that because the Federal Rules of Evidence are inapplicable to a capital sentencing hearing,
any evidence of uncharged criminal acts admitted at his
sentencing hearing would lack sufficient indicia of reliability. The defendant concludes that complete exclusion is necessary under § 3593(c) because the probative
value of such evidence would be limited, while the risk
of unfair prejudice, confusion of the issues, and misleading the jury would be high.
Although the Federal Rules of Evidence do not apply, “the FDPA provides a capital defendant with constitutionally sufficient evidentiary protection.” United
States v. Fulks, 454 F.3d 410, 438 (4th Cir.2006); accord
United States v. Lee, 374 F.3d 637, 648 (8th Cir.2004);
United States v. Fell, 360 F.3d 135, 145–46 (2d Cir.2004)
(reaching the same conclusion). Thus, the mere fact
that the Rules are inapplicable is no reason to categorically exclude evidence. Without ruling on any specific
evidence the government might seek to admit at the
defendant’s sentencing hearing, the Court declines to
hold that all evidence of uncharged acts of violence is
per se inadmissible. The Court therefore denies the defendant’s motion to strike the non-statutory aggravating factor Participation in Additional Uncharged Murders and Other Acts of Violence.
In this manner, the Court defers making an admissibility determination of specific evidence of unadjudi-
97a
cated criminal conduct until after its review of said evidence. Should the defendant’s trial proceed to the penalty phase, the Court will bifurcate eligibility and selection phases into two discrete proceedings. Both the
government and the defendant have argued to the
Court whether the Confrontation Clause and Crawford
v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d
177 (2004), should apply to the selection phase of the
defendant’s sentencing hearing. If Crawford does apply, its prohibition against the admission of testimonial
statements from unavailable witnesses not subject to a
prior opportunity for cross-examination would operate
to bar certain statements proffered by the government
as evidence of the defendant’s unadjudicated criminal
acts.
Although the Fourth Circuit has noted preCrawford that “it is far from clear that the Confrontation Clause applies to a capital sentencing proceeding,”
Higgs, 353 F.3d at 324, the applicability of Crawford to
a capital sentencing proceeding is unsettled in this jurisdiction. See United States v. Jordan, 357 F.Supp.2d
889, 901 (E.D.Va.2005) (noting that Higgs is “of limited
value in a post-Crawford analysis”). Absent guidance
from the Supreme Court or the Fourth Circuit, the district courts are left to determine this issue. After review, the Court agrees with the districts courts in this
jurisdiction that have determined Crawford only applies to the eligibility phase of capital sentencing proceedings. See United States v. Bodkins, No.
4:04cr70083, 2005 WL 1118158, at *4–5 (W.D.Va. May
11, 2005); Jordan, 357 F.Supp.2d at 903–04. Thus, testimonial hearsay evidence offered during the eligibility
phase would have to meet the requirements of Crawford before it could be presented to the jury. Crawford
98a
would not, however, operate to bar similar hearsay testimony offered during the selection phase.
Nevertheless, regardless of Crawford, courts recognize that heightened reliability concerns related to
capital sentencing require a threshold determination
that evidence of unadjudicated conduct is reliable prior
to its admission. See Jordan, 357 F.Supp.2d at 904;
United States v. Cisneros, 363 F.Supp.2d 827, 838–39
(E.D.Va.2005); United States v. Breeden, No. 3:03cr13,
2004 WL 1920981, at *4 (W.D.Va. Aug. 27, 2004); United States v. Foster, No. CRIM. CCB–02–410, 2004 WL
903921, at *1 (D.Md. Apr. 9, 2004); Beckford, 964
F.Supp. at 1000. Therefore, should the defendant’s trial
proceed to the penalty phase, the government shall
present to the Court and to the defendant information
it intends to introduce as unadjudicated conduct for a
determination of reliability. Only if the government
satisfies that threshold determination will such evidence be presented to the jury. See Beckford, 964
F.Supp. at 1000.
C. Future Dangerousness
The defendant moves to strike the non-statutory
aggravating factor “Future Dangerousness” in its entirety on the grounds that any inquiry into his future
dangerousness is unreliable within the meaning of the
Eighth Amendment, and that by alleging that the defendant “is likely” to commit criminal acts of violence in
the future, the government improperly suggests its
burden of proof is less than proof beyond a reasonable
doubt.
1.
Constitutionality of Future Dangerousness
It has long been held that a sentencing court may
evaluate and consider a defendant’s propensity to
99a
commit acts of violence in the future as an aggravating
factor weighing in favor of the death penalty. See Jurek v. Texas, 428 U.S. 262, 274–76, 96 S.Ct. 2950, 49
L.Ed.2d 929 (1976). In Jurek, the Supreme Court noted
that:
It is, of course, not easy to predict future behavior. The fact that such a determination is
difficult, however, does not mean that it cannot
be made. Indeed, prediction of future criminal
conduct is an essential element in many of the
decisions rendered throughout our criminal
justice system. The decision whether to admit
a defendant to bail, for instance, must often
turn on a judge’s prediction of the defendant’s
future conduct. And any sentencing authority
must predict a convicted person’s probable future conduct when it engages in the process of
determining what punishment to impose. For
those sentenced to prison, these same predictions must be made by parole authorities. The
task that a [capital sentencing jury] jury must
perform in answering the … question [of future
dangerousness] is thus basically no different
from the task performed countless times each
day throughout the American system of criminal justice. What is essential is that the jury
have before it all possible relevant information
about the individual defendant whose fate it
must determine.
Id. at 274–75, 96 S.Ct. 2950. See also Simmons v. South
Carolina, 512 U.S. 154, 162, 114 S.Ct. 2187, 129 L.Ed.2d
133 (1994) (reaffirming the central holding of Jurek).
In addition to lay testimony, the government may
also offer expert opinion testimony concerning the de-
100a
fendant’s future dangerousness. See Barefoot v. Estelle, 463 U.S. 880, 897–99, 103 S.Ct. 3383, 77 L.Ed.2d
1090 (1983), superseded in part by statute, Pub.L. No.
104–132, § 102 (1996) (28 U.S.C. § 2253(c)), as recognized in Slack v. McDaniel, 529 U.S. 473, 480–81, 120
S.Ct. 1595, 146 L.Ed.2d 542 (2000). In Estelle, the petitioner argued that scientific experts were categorically
unable to render predictions about a defendant’s future
dangerousness with any degree of reliability. 463 U.S.
at 896, 103 S.Ct. 3383. Although the Court recognized a
disagreement among penological experts about the accuracy of these predictions, it was “not persuaded that
such testimony is almost entirely unreliable and that
the factfinder and the adversary system will not be
competent to uncover, recognize, and take due account
of its shortcomings.” Id. at 899, 103 S.Ct. 3383. Applying these precedents, the Fourth Circuit has consistently upheld consideration of future dangerousness as
an aggravating factor. E.g., Eaton v. Angelone, 139
F.3d 990, 998 (4th Cir.1998); Bunch v. Thompson, 949
F.2d 1354, 1367–68 (4th Cir.1991); Woomer v. Aiken,
856 F.2d 677, 680 (4th Cir.1988) (all denying habeas relief, upholding state capital sentencing schemes that
consider a defendant’s future dangerousness).
In citing to studies that suggest predictions of future dangerousness are often wrong, or that subsequent advancements in federal corrections facilities
have reduced prisoner violence, the defendant argues
that the Court should conclude that Jurek and Barefoot
are no longer controlling law. These are not legitimate
grounds for a district court to question the continuing
validity of otherwise mandatory precedent. Moreover,
few of the reliability concerns raised by the defendant
in the instant motion are new considerations. In Barefoot, the Supreme Court explicitly recognized that
101a
some studies indicated that predictions of future dangerousness were often wrong. 463 U.S. at 899 n. 7, 103
S.Ct. 3383. However, this did not render consideration
of future dangerousness unconstitutional, because “[a]ll
of these professional doubts about the usefulness of
psychiatric predictions can be called to the attention of
the jury.” Id. Thus, the Court denies the defendant’s
motion to strike Future Dangerousness on the ground
that it is unreliable within the meaning of the Eighth
Amendment.5
2.
“Is Likely” Phrasing
The defendant next argues that by alleging that he
“is likely” to commit acts of violence in the future, the
factor improperly suggests that the government’s burden of proof is less than is required by due process and
the FDPA. This argument is plainly without merit.
The term “is likely” is necessary phrasing because, of
course, one cannot predict future events with absolute
certainty. The government still retains its required
burden of proof, i.e., it must prove beyond a reasonable
doubt that the defendant poses a danger to the lives
and safety of others. It is no surprise, then, that the
Fourth Circuit has noted that “[f]uture dangerousness
is best defined as evidence that a defendant is ‘likely to
commit criminal acts of violence in the future that
would be a threat to the lives and safety of others.’”
United States v. Basham, 561 F.3d 302, 331 (4th
Cir.2009) (quoting United States v. Bernard, 299 F.3d
467, 482 (5th Cir.2002)). Thus, the government’s phras5
For the same reasons, the Court denies the defendant’s motion for an order requiring the government to produce empirical
evidence establishing the reliability of the sub-factors Low Rehabilitative Potential and Lack of Remorse as a condition to presenting evidence of these sub-factors.
102a
ing of this aggravating factor does not imply a lesser
burden of proof than the defendant’s right to due process requires.
3.
Sub-factors
As an alternative to striking the factor in its entirety, the defendant challenges the government’s allegation of four specific sub-factors supporting a finding of
future dangerousness: (1) “Continuing Pattern of Violence”; (2) “Low Rehabilitative Potential”; (3) “Lack of
Remorse”; and (4) “Gang Membership.” (Doc. No. 275
at 4–5). The defendant first argues that alleging specific sub-factors under the heading Future Dangerousness
will mislead the jury. The defendant also argues that
an allegation of his low rehabilitative potential is irrelevant where the defendant’s only alternative to the
death penalty is life in prison without the possibility of
parole,6 and that his lack of remorse is alleged in such a
way that violates his Fifth Amendment right to silence.
As an initial matter, the government may allege
specific sub-factors under Future Dangerousness without misleading the jury from its core inquiry of whether
the defendant is likely to commit acts of violence in the
future. To the contrary, these sub-factors clarify the
factor’s “common-sense core of meaning,” Jurek, 428
U.S. at 279, 96 S.Ct. 2950 (White, J., concurring in
judgment), and focus the jury on the government’s
proffered evidence. For this reason, Future Dangerousness is often alleged with multiple sub-factors, including Low Rehabilitative Potential and Lack of Re6
The Court notes that although this is true for Counts 22 and
24, see 18 U.S.C. § 1959(a)(1), Counts 23 and 25 do not neces-sarily
carry a minimum life sentence. See 18 U.S.C. § 924(j)(1) (authorizing punishment “by death or by imprisonment for any term of
years or for life”).
103a
morse. See United States v. Bin Laden, 126 F.Supp.2d
290, 303–04 (S.D.N.Y.2001) (collecting cases). Moreover, because these sub-factors are alleged as evidence—not elements—of future dangerousness, the jury need not separately find the presence of all four subfactors to find the presence of future dangerousness.
Thus, the government may generally allege specific
sub-factors in support of an allegation of the defendant’s future dangerousness.7
Next, because certain of his capital offenses carry a
life sentence as the only alternative to the death penalty, the defendant challenges the relevance of the subfactor Low Rehabilitative Potential. The defendant
reasons that the issue before the jury is not whether he
can be rehabilitated, but whether he would pose a continuing danger to others in federal prison.
This argument ignores the fact that although future
dangerousness is the jury’s overall inquiry, the defendant’s potential for rehabilitation is directly relevant to
his future dangerousness. See United States v. Gooch,
No. 04–128–23, 2006 WL 3780781, at *29 (D.D.C. Dec.
20, 2006) (“[The defendant’s] alleged low rehabilitative
potential is relevant … as it bears on his future dangerousness in prison.”). This case is not one where the
criminal behavior alleged by the government would be
wholly prevented by the defendant’s incarceration. See
United States v. Taveras, 424 F.Supp.2d 446, 463–64
7
To the extent the defendant suggests that certain of these
sub-factors are unconstitutionally duplicative of each other, duplicative sub-factors are not unconstitutional, because each subfactor falls under the umbrella of a single non-statutory aggravating factor: future dangerousness. United States v. Mayhew, 380
F.Supp.2d 936, 950–51 (S.D.Ohio 2005); United States v. Taylor, 316
F.Supp.2d 730, 742–43 (N.D.Ind.2004); United States v. Davis, No.
CR.A. 01–282, 2003 WL 1873088, at *10 (E.D.La. Apr. 10, 2003).
104a
(E.D.N.Y.2006) (excluding evidence of sexual abuse
against minors to prove a defendant’s future dangerousness, when it was highly unlikely the defendant
would ever be released from prison). Rather, the government alleges by this sub-factor that the defendant’s
low potential for rehabilitation increases the likelihood
that he will commit acts of violence against other prisoners and correctional officers throughout his incarceration. For these reasons, Low Rehabilitative Potential is
a relevant sub-factor of Future Dangerousness.
Finally, the defendant raises a Fifth Amendment
challenge to the sub-factor Lack of Remorse, which alleges that he “has never expressed any remorse for
[the murders] as indicated by defendant’s statements to
fellow gang-members during the course of and following the offenses….” (Doc. No. 275 at 5). There is nothing per se unconstitutional about considering a defendant’s lack of remorse as a characteristic that favors imposition of the death penalty. See Zant, 462 U.S. at 885
n. 22, 103 S.Ct. 2733 (noting that lack of remorse is an
appropriate aggravating factor); see also United States
v. Cooper, 91 F.Supp.2d 90, 112–13 (D.D.C.2000); Nguyen, 928 F.Supp. at 1541 (both citing Zant). However,
the Fifth Amendment limits proof of lack of remorse to
“affirmative words or conduct” expressed by the defendant. United States v. Caro, 597 F.3d 608, 627 (4th
Cir.2010) (citing United States v. Basham, 561 F.3d 302,
334 (4th Cir.2009), and Emmett v. Kelly, 474 F.3d 154,
170 (4th Cir.2007)).
Given this restriction, the Court finds the government’s allegation that the defendant “has never expressed any remorse” somewhat troubling. However,
upon reading the sub-factor in its entirety, it seems
clear that the government intends to offer only affirmative statements made by the defendant to others to
105a
prove his lack of remorse. Moreover, if necessary, the
Court will offer an instruction to the jury that the defendant’s mere silence may never be considered as
proof of lack of remorse. See Caro, 597 F.3d at 630–31
(approving of a similar instruction). Thus, although the
Fifth Amendment places restrictions on admissible evidence concerning the defendant’s lack of remorse, it
does not require the Court to strike this sub-factor
from the government’s Notice. The Court therefore
denies the defendant’s motion to strike Future Dangerousness and certain of its sub-factors.
D. Gang Motivated Killing
The defendant moves to strike the non-statutory
aggravating factor “Gang Motivated Killing” from the
government’s Notice as duplicative of both the criminal
conduct alleged in Counts 22 and 24 of his Superseding
Indictment and the non-statutory aggravating factor
Future Dangerousness.8 The defendant asserts that
the duplicative nature of this aggravating factor violates the Eighth Amendment in the sense that it fails to
narrow the class of persons eligible for the death penalty from those guilty of the underlying capital offense,
which in the defendant’s case is a violation of 18 U.S.C.
§ 1959(a)(1).
In Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546,
98 L.Ed.2d 568 (1988), the United States Supreme
Court upheld a state capital sentencing scheme that required a jury to consider certain circumstances as both
statutory elements of first-degree murder and aggra8
In his motion, the defendant fails to specify which nonstatutory aggravating factor is supposedly duplicative of Gang
Motivated Killing, but the government ad-dresses Future Dangerousness in its response. Absent a reply from the defendant, the
Court assumes that this is the aggravating factor at issue.
106a
vating factors. Id. at 241–43, 108 S.Ct. 546. Because
each circumstance elevated the offense beyond a common-law murder, thereby “genuinely narrowing the
class of death-eligible persons,” there was nothing unconstitutional about the jury performing this narrowing
function at the guilt phase of the trial. Id. at 244–45,
108 S.Ct. 546. Thus, “the fact that the aggravating circumstance duplicated one of the elements of the crime
[did] not make the [the] sentence constitutionally infirm.” Id. at 246, 108 S.Ct. 546. Federal courts, including the Fourth Circuit, have uniformly applied the
Lowenfield holding to aggravating factors that duplicate elements of federal homicide statutes. See Higgs,
353 F.3d at 315–16 (upholding an aggravating factor
that duplicated an element of 18 U.S.C. § 1111(a), causing death during the commission of a kidnapping); see
also Deputy v. Taylor, 19 F.3d 1485, 1502 (3rd Cir.1994)
(“Following … Lowenfield, federal courts of appeals
have consistently held that a sentencing jury can consider an element of the capital offense as an aggravating circumstance even if it is duplicitous.”).
It is less clear, however, whether the same circumstance alleged as two separate non-statutory aggravating factors would comply with the Constitution. The
Supreme Court has expressly declined to rule on this
issue. See Jones v. United States, 527 U.S. 373, 398, 119
S.Ct. 2090, 144 L.Ed.2d 370 (1999) (declining to decide
whether “aggravating factors could be duplicative so as
to render them constitutionally invalid”). Prior to the
Jones decision, the Fourth Circuit held that permitting
a jury to make “cumulative findings” during the penalty phase of trial creates a “clear risk of skewing the
weighing process in favor of the death penalty and
thereby causing it to be imposed arbitrarily, hence unconstitutionally.” United States v. Tipton, 90 F.3d 861,
107a
899 (4th Cir.1996) (citing Stringer v. Black, 503 U.S.
222, 230–32, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992)).
Although Tipton concerned a jury’s cumulative finding
of several death-eligible mens rea identical to those set
forth in 18 U.S.C. § 3591(a)(2)(A)-(D), several district
courts within the Fourth Circuit have concluded that
Tipton also prohibits duplicative aggravating factors.
See, e.g., Rivera, 405 F.Supp.2d at 668; Grande, 353
F.Supp.2d at 631; United States v. Regan, 228
F.Supp.2d 742, 750–51 (E.D.Va.2002); United States v.
Johnson, 136 F.Supp.2d 553, 559 (W.D.Va.2001). These
courts have held that aggravating factors are impermissibly duplicative if they “necessarily subsume[]”
each other. Regan, 228 F.Supp.2d at 750 (quoting
United States v. McCullah, 76 F.3d 1087, 1111 (10th
Cir.1996)). This occurs “when the factors in question
substantially overlap, or the factor’s elements necessarily include elements of another factor.” Id.
As it relates to Counts 22 and 24 of his Indictment,
the defendant’s argument is foreclosed by Lowenfield
and Higgs. In order to convict the defendant on Counts
22 and 24, the government will have to prove not only
that he murdered Ruben and Manuel Salinas, but that
he did so for the purpose of maintaining or increasing
position in MS–13. 18 U.S.C. § 1959(a); (Doc. No. 623:
Third Superseding Indictment ¶ 49 & 54). Thus, a guilty
verdict on Count 22 or 24 “genuinely narrow[s] the class
of death-eligible persons” from those who simply commit
murder to those who commit murder for the purpose of
maintaining or elevating position in a racketeering organization. Lowenfield, 484 U.S. at 244, 108 S.Ct. 546.
Such a finding during the guilt phase of the trial would
not prevent the government from properly re-alleging
the same circumstance as an aggravating factor.
108a
Moreover, Gang Motivated Killing is not duplicative of Future Dangerousness. Each aggravating factor relates to a different characteristic of the defendant:
Gang Motivated Killing concerns the defendant’s motive for committing a specific act of violence in the past,
while Future Dangerousness concerns his propensity
for violence in the future. The only overlap is found in
the sub-factor Gang Membership, which alleges as evidence of the defendant’s future dangerousness that he
“has demonstrated an allegiance to and active membership in MS–13, a violent criminal enterprise.” (Doc. No.
275 at 5). Although the defendant’s allegiance to MS–
13 is certainly relevant to both factors, this single
commonality does not create a substantial overlap between Gang Motivated Killing and Future Dangerousness, nor does it subsume the elements of one factor into the other. Regan, 228 F.Supp.2d at 751. Thus, these
aggravating factors are sufficiently distinguishable
such that a finding of both would not impermissibly or
arbitrarily skew the jury’s weighing process in favor of
the death penalty.
E. Callous Disregard for the Severity of the Offense
Finally, the defendant moves to strike the nonstatutory aggravating factor “Callous Disregard for the
Severity of the Offense” (hereafter “Callous Disregard”) on the ground that it is unconstitutionally vague,
irrelevant, and duplicative of the non-statutory aggravating factor future dangerousness.9
9
In his motion, the defendant again fails to specify which nonstatutory aggravating factor is supposedly duplicative of Callous
Disregard, and the government does not identify one in its response. After a review of the government’s Notice, it seems likely
that the defendant is again referring to Future Dangerousness.
109a
A factor is not unconstitutionally vague if it possesses “some ‘common-sense core of meaning … that
criminal juries should be capable of understanding … .’”
Tuilaepa, 512 U.S. at 973, 114 S.Ct. 2630 (1994) (quoting Jurek v. Texas, 428 U.S. 262, 279, 96 S.Ct. 2950, 49
L.Ed.2d 929 (1976) (White, J., concurring in judgment)).
However, “the proper degree of definition” required to
withstand a vagueness challenge falls well short of
“mathematical precision.” Id. (quoting Walton v. Arizona, 497 U.S. 639, 655, 110 S.Ct. 3047, 111 L.Ed.2d 511
(1990)). Moreover, a relevant aggravating factor is one
that assists the jury “in distinguishing ‘those who deserve capital punishment from those who do not….’”
United States v. McVeigh, 944 F.Supp. 1478, 1488
(D.Colo.1996) (quoting Creech, 507 U.S. at 474, 113
S.Ct. 1534); accord Johnson, 136 F.Supp.2d at 558
(“[T]he aggravating factor must be sufficiently relevant
to the question of who should live and who should die.”)
(internal quotations omitted). Courts have often emphasized that relevant evidence is “particularized to the
individual defendant.” United States v. Chong, 98
F.Supp.2d 1110, 1116 (D.Hawai’i 1999) (citing United
States v. Frank, 8 F.Supp.2d 253, 279 (S.D.N.Y.1998)).
If the aggravating factor bears only a “tangential relationship” to whether the defendant deserves the death
penalty, it should be excluded. Rivera, 405 F.Supp.2d
at 668. Finally, aggravating factors are not duplicative
unless they substantially overlap, or the elements of
one necessarily include the elements of another. Regan, 228 F.Supp.2d at 751.
Callous Disregard is neither unconstitutionally
vague nor irrelevant. As is noted supra, general constitutional challenges to Lack of Remorse, a similar factor, have failed. See Cooper, 91 F.Supp.2d at 112–13;
Nguyen, 928 F.Supp. at 1541 (both citing Zant, 462 U.S.
110a
at 885 n. 22, 103 S.Ct. 2733). In order to prove his callous disregard for the severity of these offenses, the
government will have to show that the defendant,
through his words and actions, failed to appreciate the
gravity of killing two human beings. This has a “common-sense core of meaning” sufficient to overcome any
vagueness concerns. Jurek, 428 U.S. at 279, 96 S.Ct.
2950 (White, J., concurring). Moreover, the factor is
also relevant, because whether the defendant appreciated the gravity of his actions relates to his individual
character and provides one legitimate basis to distinguish whether the death penalty is justified in this particular case. Creech, 507 U.S. at 474, 113 S.Ct. 1534.
Thus, Callous Disregard is sufficient to overcome
vagueness and relevance challenges.
Greater concerns are raised by the defendant’s
claim that Callous Disregard is duplicative of Future
Dangerousness. Both the government and the Court
have likened the concept of callous disregard for the
severity of the offense to a lack of remorse, which the
government also alleges in its Notice as a sub-factor of
Future Dangerousness. (Doc. No. 275 at 5). As a starting point, the Court recognizes the difference between
alleging lack of remorse in its own right and alleging of
lack of remorse as it relates to the defendant’s future
dangerousness. Moreover, Lack of Remorse is alleged
as only one of four sub-factors of Future Dangerousness, each of which is meant to explain rather than supplant that aggravating factor. But despite these distinctions, a possibility exists that the jury could interpret the government’s Notice as suggesting that a finding of Lack of Remorse automatically results in a finding of both Future Dangerousness and Callous Disregard. In this sense, the jury could perceive that the elements of Callous Disregard necessarily subsume the
111a
elements of Future Dangerousness.
Regan, 228
F.Supp.2d at 750. To eliminate this risk, the Court
grants the defendant’s motion to strike Callous Disregard from the government’s Notice. No part of the
Court’s ruling on this matter shall prevent the government from arguing the defendant’s lack of remorse as
proof of his future dangerousness.
IV. CONCLUSION
IT IS, THEREFORE, ORDERED that:
1.
The “Defendant’s Motion to Strike Non–
Statutory Aggravating Factors and Exclude
Evidence of Unadjudicated Criminal Acts During Penalty Phase of Trial” (Doc. No. 483) is
DENIED;
2.
The defendant’s “Motion to Strike the Non–
Statutory Aggravating Factor of Future Dangerousness from the Notice of Intent to Seek
the Death Penalty” (Doc. No. 968) is DENIED;
3.
The “Defendant’s Motion to Strike Non–
Statutory Aggravating Factors from Notice of
Intent to Seek the Death Penalty” (Doc. No.
488) is GRANTED IN PART and DENIED
IN PART; that is, GRANTED such that the
Court STRIKES the non-statutory aggravating factor “Callous Disregard for the Severity
of the Offense” from the government’s Notice
of Intention to Seek the Death Penalty (Doc.
No. 275), and DENIED in all other respects;
and
4.
Should the defendant’s trial proceed to the
penalty phase, the government shall present to
the Court and to the defendant information it
intends to introduce as unadjudicated conduct
112a
for a determination of reliability. Only if the
government satisfies that threshold determination will such evidence be presented to the
jury.
113a
APPENDIX C
AMENDED ORDER
PUBLISHED
FILED: August 12, 2014
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6
(3:08-cr-00134-RJC-2)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALEJANDRO ENRIQUE RAMIREZ UMANA,
a/k/a Wizard, a/k/a Lobo,
Defendant-Appellant.
ORDER
The Court denies the petition for rehearing en banc.
A requested poll of the Court failed to produce a
majority of judges in regular active service and not disqualified who voted in favor of rehearing en banc.
Judge Motz, Judge Gregory, Judge Keenan, Judge
Wynn, and Judge Thacker voted to grant rehearing en
banc. Chief Judge Traxler, Judge Wilkinson, Judge
Niemeyer, Judge King, Judge Shedd, Judge Duncan,
Judge Agee, and Judge Floyd voted to deny rehearing
en banc. Judge Diaz recused himself and did not participate in the poll.
114a
Judge Wilkinson wrote an opinion concurring in the
denial of rehearing en banc, in which Judge Niemeyer
joined. Judge Gregory wrote an opinion dissenting
from the denial of rehearing en banc, in which Judge
Wynn joined.
Entered at the direction of Judge Niemeyer.
For the Court
/s/ Patricia S. Connor, Clerk
WILKINSON, Circuit Judge, concurring in the denial
of rehearing en banc:
Judge Niemeyer’s fine opinion for the court fully
addresses the points raised here by the dissent. United
States v. Umaña, 750 F.3d 320 (4th Cir. 2014). I agree
with that opinion, and add only these brief observations.
Were we to renounce Williams v. New York, 337
U.S. 241 (1949), this court would ignore a clear and consistent directive from the Supreme Court not to overturn higher precedent preemptively. In Rodriguez de
Quijas v. Shearson/American Express, Inc., 490 U.S.
477 (1989), the court of appeals had declined to follow a
decades-old Supreme Court case on the enforceability
of arbitration agreements, Wilko v. Swan, 346 U.S. 427
(1953), because in the view of the court of appeals, the
Court’s intervening decisions on the construction of related federal statutes had reduced it to “obsolescence,”
Rodriguez de Quijas v. Shearson/Lehman Bros., Inc.,
845 F.2d 1296, 1299 (5th Cir. 1988). While the Court
finally did overrule Wilko, Shearson, 490 U.S. at 484,
its opinion is best remembered for one sentence that is
pure ice: “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected
in some other line of decisions, the Court of Appeals
115a
should follow the case which directly controls, leaving
to this Court the prerogative of overruling its own decisions.” Id.
The “tea leaves” for overruling were far clearer in
Shearson than they are in this case. But the practice of
circuit courts trying to anticipate, based on “trends,”
what the Supreme Court would do with an actual holding has not only raised eyebrows upstairs but had heretofore met with disfavor on our court. See, e.g., United
States v. Danielczyk, 683 F.3d 611, 615 (4th Cir. 2012)
(“Thus, lower courts should not conclude that the Supreme Court’s ‘more recent cases have, by implication,
overruled [its] earlier precedent.’” (alteration in original) (quoting Agostini v. Felton, 521 U.S. 203, 237
(1997))), cert. denied, 133 S. Ct. 1459 (2013). Because
Williams controls this case, I concur in the denial of the
petition for rehearing en banc.
Williams examined which rules of evidence were
applicable to “the manner in which a judge may obtain
information to guide him in the imposition of sentence
upon an already convicted defendant” in a capital murder case. 337 U.S. at 246. In rejecting the view that
the defendant enjoyed trial confrontation rights at sentencing, the Court noted:
In addition to the historical basis for different
evidentiary rules governing trial and sentencing procedures there are sound practical reasons for the distinction. … A sentencing judge,
however, is not confined to the narrow issue of
guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has
been determined. Highly relevant—if not essential—to his selection of an appropriate sen-
116a
tence is the possession of the fullest information possible concerning the defendant’s life
and characteristics. … It is urged, however,
that we should draw a constitutional distinction
as to the procedure for obtaining information
where the death sentence is imposed. We cannot accept the contention.
337 U.S. at 246-47, 251.
The three circuits to have addressed this issue have
found Williams to be controlling in capital sentencing
cases. The procedures or sentencing criteria may vary,
but a sentencing proceeding remains a sentencing. Its
purpose of providing a complete and rounded sense of
the one to be sentenced does not fluctuate with the
identity of the sentencer or the severity of the sanction
to be imposed. The Seventh Circuit explicitly stated
that the “Confrontation Clause does not apply to capital
sentencing,” that “the Supreme Court … has never
questioned the precise holding of Williams v. New
York,” and that it was not free to revisit the Williams
decision. Szabo v. Walls, 313 F.3d 392, 398 (7th Cir.
2002). Likewise, the Eleventh Circuit considered Williams controlling when it made clear that a defendant
has a right to rebut before the jury information relevant to his character and record, but not to exercise full
confrontation rights as to hearsay declarants. Muhammad v. Sec’y, Fla. Dep’t of Corr., 733 F.3d 1065,
1074 (11th Cir. 2013). Finally, the Fifth Circuit
grounded its opinion on Williams and indicated that it
also was not free to revisit that decision. United States
v. Fields, 483 F.3d 313 (5th Cir. 2007). Granting rehearing en banc in this case not only would fail to resolve a
circuit split but in fact would risk creating one in the
face of controlling Supreme Court precedent.
117a
Unlike in Shearson, it is anything but clear here
that the Supreme Court will overrule Williams. Numerous factors support Williams’s continuing vitality,
even after the passage of the Federal Death Penalty
Act of 1994. Citing Williams, the Court recently continued to differentiate between a trial’s guilt and sentencing phases and affirmed the broader evidentiary
discretion attached to the latter. See Alleyne v. United
States, 133 S. Ct. 2151, 2163 n.6 (2013) (“[J]udges may
exercise sentencing discretion through ‘an inquiry
broad in scope, largely unlimited either as to the kind of
information [they] may consider, or the source from
which it may come.’” (alteration in original) (quoting
United States v. Tucker, 404 U.S. 443, 446 (1972))); id.
(“‘[B]oth before and since the American colonies became a nation, courts in this country and in England
practiced a policy under which a sentencing judge could
exercise a wide discretion in the sources and types of
evidence used to assist him in determining the kind and
extent of punishment to be imposed within limits fixed
by law.’” (alteration in original) (quoting Williams v.
New York, 337 U.S. 241, 246 (1949))). This position has
been firm and consistent. See United States v. Watts,
519 U.S. 148, 154 (1997); Witte v. United States, 515
U.S. 389, 399-401 (1995); Nichols v. United States, 511
U.S. 738, 747-48 (1994). It is not just that an “already
convicted defendant,” Williams, 337 U.S. at 244, no
longer benefits from the presumption of innocence in
the sentencing phase. Practical considerations likewise
counsel against formal constrictions that may not only
impede the quest for a full human picture in all of its
complexity, but lay the groundwork for additional sparring and sow the seeds for added assignments of error.
Circumscribing these rights does not leave the
convicted defendant without protection from unreliable
118a
evidence. Due process requires that the broader range
of evidence available during sentencing still possess
sufficient indicia of reliability. United States v. Powell,
650 F.3d 388, 393-94 (4th Cir. 2011); see also U.S. Sentencing Guidelines Manual § 6A1.3(a) (2013). The defendant also retains the opportunity for rebuttal of adverse evidence. Gardner v. Florida, 430 U.S. 349, 362
(1977); see also U.S. Sentencing Guidelines Manual
§ 6A1.3. Furthermore, the Supreme Court has identified certain “structural errors” that “undermine the
fairness of the entire criminal proceeding” and require
automatic reversal. United States v. Davila, 133 S. Ct.
2139, 2142 (2013); see also Arizona v. Fulminante, 499
U.S. 279, 310 (1991). Among these structural errors are
violations of the rights to counsel and to an unbiased
judge, both of which are retained during sentencing.
Fulminante, 499 U.S. at 308-10; Gardner, 430 U.S. at
358. Confrontation Clause violations, by contrast, are
subject to harmless error analysis. Delaware v. Van
Arsdall, 475 U.S. 673, 680, 684 (1986). The trial right to
confrontation and cross-examination remains part of
our imperishable inheritance of liberty, see Crawford v.
Washington, 541 U.S. 36, 50-51 (2004), but it is not
among the constitutional accoutrements of sentencing,
in part because “Williams shows that witnesses providing information to the court after guilt is established
are not accusers within the meaning of the confrontation clause,” United States v. Roche, 415 F.3d 614, 618
(7th Cir. 2005).
It is not our office to create a circuit split, preemptively overturn Supreme Court holdings, and attempt
to force the Court’s hand. It bears note that the hierarchical nature of the judicial system lends to law a stability and consistency that would be lost if, for example,
district courts treated our rulings in the fashion urged
119a
by those with a more aggressive view of the intermediate appellate role. Society lives by law. When courts,
convened in their roles as guardians of law, set the example of abiding by law, society as a whole will replenish its faith in our most cherished institutions.
Judge Niemeyer joins me in this opinion.
GREGORY, Circuit Judge, dissenting from the denial
of rehearing en banc:
The government used unconfronted accusations from
police informants to send a man to his death. I strongly
believe that this violated Mr. Umaña’s Sixth Amendment rights. My full reasoning is set out in my dissent.
United States v. Umaña, 750 F.3d 320, 360–70 (4th Cir.
2014). With all due respect, I consider our refusal to rehear this case en banc to be a grave mistake. However,
I write today to explain why I believe that Supreme
Court review of Mr. Umaña’s argument is warranted.
I believe Supreme Court review is vital because
this Court and the district court misread the past five
decades of Supreme Court jurisprudence on the Sixth
Amendment and the death penalty. Further, I believe
this misreading is the difference between Mr. Umaña
living and dying. The conviction supporting the death
sentence was a gang-related double murder that occurred after an argument in a bar. Though this crime
was appalling, it is unlikely that it alone would have
supported a death sentence, given Mr. Umaña’s lack of
previous convictions. Rather, the reason Mr. Umaña
now faces execution is that the prosecutor was able to
introduce out-of-court accusations from police informants that accused Umaña of several previous murders.
An examination of the government’s summation argu-
120a
ment at sentencing demonstrates this: nearly every
page of the transcript references these past murders.
Umaña, 750 F.3d at 362 (collecting references to past
murders) (Gregory, J., dissenting). For the reasons set
out in my dissent, these accusers were not tenable witnesses: they would likely not have withstood the scrutiny of cross-examination. Mr. Umaña was never given
this chance, however. Instead, the court substituted a
reliability finding for Umaña’s Sixth Amendment
rights, and the result was that the jury sentenced
Umaña to death.
As Justice Scalia writes, “[d]ispensing with confrontation because testimony is obviously reliable is
akin to dispensing with jury trial because a defendant is
obviously guilty.” See Crawford v. Washington, 541
U.S. 36, 62 (2004). “This is not what the Sixth Amendment prescribes.” Id. Further buttressing my view is
that this constitutional violation occurred during a
Federal Death Penalty Act trial, in which a jury is required to make factual findings before a death sentence
is within the permissible range of punishments. 18
U.S.C. § 3593(e) (requiring a jury to find the existence
of enumerated aggravating factors, any additional aggravating factors, and that all aggravating factors outweigh all mitigating factors before death is permissible). Even in sentencing proceedings, certain Sixth
Amendment rights apply for factfinding that can increase the range of punishments. Ring v. Arizona, 536
U.S. 584, 589 (2002). “[A]ll facts essential to imposition
of the level of punishment that the defendant receives—whether the statute calls them elements of the
offense, sentencing factors, or Mary Jane—must be
found by the jury beyond a reasonable doubt.” Id. at
610 (Scalia, J., concurring). Thus, the primary reason
that I believe Supreme Court review is necessary in
121a
this case is because the district court’s decision, and our
panel opinion affirming it, do not heed the clear trend
that Crawford and Ring represent.
However, even if my view on the reach of the Confrontation Clause is incorrect, Supreme Court review is
still vital in order to resolve the tension in current death
penalty doctrine and to achieve uniformity across federal prosecutions. The panel’s decision is driven in large
part by the Supreme Court’s ruling in Williams v. New
York. 337 U.S. 241 (1949). That case held that under
the Due Process Clause, the defendant did not have a
right to confront his accusers during New York’s death
sentencing procedure, in which a judge had discretion to
reject a jury-imposed life sentence for a death sentence.
Id. The reason I respectfully disagree with the majority
opinion is that since Williams, several lines of Supreme
Court cases have created a sea change in death penalty
procedure and Sixth Amendment doctrine. See Crawford, 541 U.S. 36 (overruling precedent to find that reliability finding cannot substitute for cross-examination);
Ring, 536 U.S. 584 (overruling precedent to find that
Sixth Amendment can apply during sentencing); Furman v. Georgia, 408 U.S. 238 (1972) (holding that death
penalty cannot be imposed using sentencing procedures
that create a risk of arbitrary and discriminatory enforcement). In fact, Williams was decided before it was
even accepted that the Sixth Amendment applied to
state sentencing procedures in the first place. Thus,
while the majority and I disagree on the reach of the
Confrontation Clause, it is clear that there is tension in
Supreme Court case law. Ring and Crawford suggest a
broader understanding of Sixth Amendment rights and
Furman creates more muscular requirements for death
sentencing procedure, and these developments postdate
the Williams decision. While Williams has not been
122a
overruled, this tension suggests that it must be revisited in light of our modern understanding of the Sixth
Amendment and the quality of procedure necessary for
the government to take a man’s life.
More importantly, this tension in Supreme Court
case law has fostered a lack of uniformity in federal
death sentencing procedure that creates intolerable unfairness. The end result is that a defendant’s constitutional rights depend on the whims or strategic maneuvering of the prosecutor. In the absence of Supreme
Court guidance, district courts across the country have
reached conflicting views on whether the Confrontation
Clause applies throughout a Federal Death Penalty Act
trial, with some courts adopting my view and others
adopting the majority’s view that the rights only apply
to the initial stage of capital sentencing. Compare
United States v. Umaña, 707 F. Supp. 2d 621, 633
(W.D.N.C. 2010) (finding Confrontation Clause rights in
first stage of federal capital sentencing but not the second stage), with United States v. Stitt, 760 F. Supp. 2d
570, 581-82 (E.D. Va. 2010) (finding Confrontation
Clause rights in both stages of federal capital sentencing), and United States v. Sablan, 555 F. Supp. 2d 1205
(D. Colo. 2007) (same). Circuit court judges, too, have
disagreed on this precise issue.* The result is that in
federal capital trials—the most important possible proceeding of a defendant’s life—the scope of a defendant’s
* See Muhammad v. Sec’y, Fla. Dep’t of Corr., 733 F.3d 1065
(11th Cir. 2013) (divided panel opinion finding that Confrontation
Clause does not apply to capital cases after guilty verdict); United
States v. Fields, 483 F.3d 313, 324–338 (5th Cir. 2007) (same); Proffitt v. Wainwright, 685 F.2d 1227, 1252–53 (11th Cir. 1982) (finding
a right to cross examine the author of a psychiatric report under
the Sixth Amendment during sentencing) modified, 706 F.2d 311
(expressly limiting case to psychiatric reports).
123a
Sixth Amendment rights depends on the district in
which the case is brought. See, e.g., Umana, 707 F.
Supp. at 633 (“Absent guidance from the Supreme
Court or the Fourth Circuit, the district courts are left
to determine this issue.”); United States v. Mills, 446 F.
Supp. 2d 1115, 1122 (C.D. Cal. 2006) (noting its struggle
“to apply the Supreme Court’s decision in Crawford”
and lamenting that “recent Supreme Court decisions
complicate the matter”). Thus, even if my view is
wrong, Supreme Court review is necessary to ensure
fairness and uniformity in federal death cases. The
scope of a defendant’s Sixth Amendment rights should
not depend on the venue in which a case is brought.
Justice Scalia has lamented that “the repeated
spectacle of a man’s going to his death” without the
Sixth Amendment protection of jury factfinding “accelerate[s]” the “perilous decline” of “our people’s traditional belief in the right of trial by jury.” Ring, 536
U.S. at 612 (Scalia, J., concurring). He argues that “we
render ourselves callous to the need for that protection
by regularly imposing the death penalty without it.”
Id. I firmly believe that these words are as true for the
Confrontation Clause of the Sixth Amendment as they
are for the jury clause. There is no doubt that Mr.
Umaña is being sent to his death in large part based on
accusations of murder for which he was never charged,
much less convicted. There is no doubt that the basis
for these accusations was weak and would have withered under the scorching sunlight of cross-examination.
Mr. Umaña was never given this opportunity, however.
For the Framers of the Constitution, this state of facts
was unacceptable when they occurred in England in the
infamous Sir Walter Raleigh trial. Crawford, 541 U.S.
at 44, 62. I consider it just as unacceptable today. Accordingly, I dissent.
124a
Judge Wynn joins in this dissent.
125a
APPENDIX D
FILED: June 27, 2014
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6
(3:08-cr-00134-RJC-2)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALEJANDRO ENRIQUE RAMIREZ UMANA,
a/k/a Wizard, a/k/a Lobo,
Defendant-Appellant.
ORDER
The Court denies the petition for rehearing en banc.
A requested poll of the Court failed to produce a
majority of judges in regular active service and not disqualified who voted in favor of rehearing en banc.
Judge Motz, Judge Gregory, Judge Keenan, Judge
Wynn, and Judge Thacker voted to grant rehearing en
banc. Chief Judge Traxler, Judge Wilkinson, Judge
Niemeyer, Judge King, Judge Shedd, Judge Duncan,
Judge Agee, and Judge Floyd voted to deny rehearing
en banc. Judge Diaz recused himself and did not participate in the poll.
Entered at the direction of Judge Niemeyer.
For the Court
/s/ Patricia S. Connor, Clerk
127a
APPENDIX E
RELEVANT STATUTORY PROVISIONS
18 U.S.C. § 3591
§3591. Sentence of death
(a) A defendant who has been found guilty of—
(1) an offense described in section 794 or section 2381; or
(2) any other offense for which a sentence of
death is provided, if the defendant, as determined
beyond a reasonable doubt at the hearing under
section 3593—
(A) intentionally killed the victim;
(B) intentionally inflicted serious bodily injury that resulted in the death of the victim;
(C) intentionally participated in an act, contemplating that the life of a person would be
taken or intending that lethal force would be
used in connection with a person, other than
one of the participants in the offense, and the
victim died as a direct result of the act; or
(D) intentionally and specifically engaged
in an act of violence, knowing that the act created a grave risk of death to a person, other
than one of the participants in the offense, such
that participation in the act constituted a reckless disregard for human life and the victim
died as a direct result of the act,
shall be sentenced to death if, after consideration of
the factors set forth in section 3592 in the course of a
128a
hearing held pursuant to section 3593, it is determined
that imposition of a sentence of death is justified, except that no person may be sentenced to death who was
less than 18 years of age at the time of the offense.
(b) A defendant who has been found guilty of—
(1) an offense referred to in section 408(c)(1) of
the Controlled Substances Act (21 U.S.C. 848(c)(1)),
committed as part of a continuing criminal enterprise offense under the conditions described in subsection (b) of that section which involved not less
than twice the quantity of controlled substance described in subsection (b)(2)(A) or twice the gross
receipts described in subsection (b)(2)(B); or
(2) an offense referred to in section 408(c)(1) of
the Controlled Substances Act (21 U.S.C. 848(c)(1)),
committed as part of a continuing criminal enterprise offense under that section, where the defendant is a principal administrator, organizer, or leader
of such an enterprise, and the defendant, in order
to obstruct the investigation or prosecution of the
enterprise or an offense involved in the enterprise,
attempts to kill or knowingly directs, advises, authorizes, or assists another to attempt to kill any
public officer, juror, witness, or members of the
family or household of such a person,
shall be sentenced to death if, after consideration of
the factors set forth in section 3592 in the course of a
hearing held pursuant to section 3593, it is determined
that imposition of a sentence of death is justified, except that no person may be sentenced to death who was
less than 18 years of age at the time of the offense.
129a
18 U.S.C. § 3592
§3592. Mitigating and aggravating factors to be
considered in determining whether a sentence of
death is justified
(a) Mitigating Factors.—In determining whether a
sentence of death is to be imposed on a defendant, the
finder of fact shall consider any mitigating factor, including the following:
(1) Impaired capacity.—The defendant’s capacity to appreciate the wrongfulness of the defendant’s conduct or to conform conduct to the requirements of law was significantly impaired, regardless
of whether the capacity was so impaired as to constitute a defense to the charge.
(2) Duress.—The defendant was under unusual
and substantial duress, regardless of whether the
duress was of such a degree as to constitute a defense to the charge.
(3) Minor participation.—The defendant is punishable as a principal in the offense, which was
committed by another, but the defendant’s participation was relatively minor, regardless of whether
the participation was so minor as to constitute a defense to the charge.
(4) Equally culpable defendants.—Another defendant or defendants, equally culpable in the
crime, will not be punished by death.
(5) No prior criminal record.—The defendant
did not have a significant prior history of other
criminal conduct.
130a
(6) Disturbance.—The defendant committed
the offense under severe mental or emotional disturbance.
(7) Victim’s consent.—The victim consented to
the criminal conduct that resulted in the victim’s
death.
(8) Other factors.—Other factors in the defendant’s background, record, or character or any other
circumstance of the offense that mitigate against
imposition of the death sentence.
(b) Aggravating Factors for Espionage and Treason.—In determining whether a sentence of death is
justified for an offense described in section 3591(a)(1),
the jury, or if there is no jury, the court, shall consider
each of the following aggravating factors for which notice has been given and determine which, if any, exist:
(1) Prior espionage or treason offense.—The
defendant has previously been convicted of another
offense involving espionage or treason for which a
sentence of either life imprisonment or death was
authorized by law.
(2) Grave risk to national security.—In the
commission of the offense the defendant knowingly
created a grave risk of substantial danger to the
national security.
(3) Grave risk of death.—In the commission of
the offense the defendant knowingly created a
grave risk of death to another person.
The jury, or if there is no jury, the court, may consider whether any other aggravating factor for which
notice has been given exists.
131a
(c) Aggravating Factors for Homicide.—In determining whether a sentence of death is justified for an
offense described in section 3591(a)(2), the jury, or if
there is no jury, the court, shall consider each of the following aggravating factors for which notice has been
given and determine which, if any, exist:
(1) Death during commission of another
crime.—The death, or injury resulting in death, occurred during the commission or attempted commission of, or during the immediate flight from the
commission of, an offense under section 32 (destruction of aircraft or aircraft facilities), section 33
(destruction of motor vehicles or motor vehicle facilities), section 37 (violence at international airports), section 351 (violence against Members of
Congress, Cabinet officers, or Supreme Court Justices), an offense under section 751 (prisoners in
custody of institution or officer), section 794 (gathering or delivering defense information to aid foreign government), section 844(d) (transportation of
explosives in interstate commerce for certain purposes), section 844(f) (destruction of Government
property by explosives), section 1118 (prisoners
serving life term), section 1201 (kidnapping), section 844(i) (destruction of property affecting interstate commerce by explosives), section 1116 (killing
or attempted killing of diplomats), section 1203
(hostage taking), section 1992 [footnote omitted]
(wrecking trains), section 2245 (offenses resulting
in death), section 2280 (maritime violence), section
2281 (maritime platform violence), section 2332
(terrorist acts abroad against United States nationals), section 2332a (use of weapons of mass destruction), or section 2381 (treason) of this title, or
132a
section 46502 of title 49, United States Code (aircraft piracy).
(2) Previous conviction of violent felony involving firearm.—For any offense, other than an offense for which a sentence of death is sought on the
basis of section 924(c), the defendant has previously
been convicted of a Federal or State offense punishable by a term of imprisonment of more than 1
year, involving the use or attempted or threatened
use of a firearm (as defined in section 921) against
another person.
(3) Previous conviction of offense for which a
sentence of death or life imprisonment was authorized.—The defendant has previously been convicted of another Federal or State offense resulting in
the death of a person, for which a sentence of life
imprisonment or a sentence of death was authorized by statute.
(4) Previous conviction of other serious offenses.—The defendant has previously been convicted
of 2 or more Federal or State offenses, punishable
by a term of imprisonment of more than 1 year,
committed on different occasions, involving the infliction of, or attempted infliction of, serious bodily
injury or death upon another person.
(5) Grave risk of death to additional persons.—
The defendant, in the commission of the offense, or
in escaping apprehension for the violation of the offense, knowingly created a grave risk of death to 1
or more persons in addition to the victim of the offense.
(6) Heinous, cruel, or depraved manner of
committing offense.—The defendant committed the
133a
offense in an especially heinous, cruel, or depraved
manner in that it involved torture or serious physical abuse to the victim.
(7) Procurement of offense by payment.—The
defendant procured the commission of the offense
by payment, or promise of payment, of anything of
pecuniary value.
(8) Pecuniary gain.—The defendant committed
the offense as consideration for the receipt, or in
the expectation of the receipt, of anything of pecuniary value.
(9) Substantial planning and premeditation.—
The defendant committed the offense after substantial planning and premeditation to cause the
death of a person or commit an act of terrorism.
(10) Conviction for two felony drug offenses.—
The defendant has previously been convicted of 2
or more State or Federal offenses punishable by a
term of imprisonment of more than one year, committed on different occasions, involving the distribution of a controlled substance.
(11) Vulnerability of victim.—The victim was
particularly vulnerable due to old age, youth, or infirmity.
(12) Conviction for serious federal drug offenses.—The defendant had previously been convicted
of violating title II or III of the Comprehensive
Drug Abuse Prevention and Control Act of 1970 for
which a sentence of 5 or more years may be imposed or had previously been convicted of engaging
in a continuing criminal enterprise.
(13) Continuing criminal enterprise involving
drug sales to minors.—The defendant committed
134a
the offense in the course of engaging in a continuing criminal enterprise in violation of section 408(c)
of the Controlled Substances Act (21 U.S.C. 848(c)),
and that violation involved the distribution of drugs
to persons under the age of 21 in violation of section
418 of that Act (21 U.S.C. 859).
(14) High public officials.—The
committed the offense against—
defendant
(A) the President of the United States, the
President-elect, the Vice President, the Vice
President-elect, the Vice President-designate,
or, if there is no Vice President, the officer next
in order of succession to the office of the President of the United States, or any person who is
acting as President under the Constitution and
laws of the United States;
(B) a chief of state, head of government, or
the political equivalent, of a foreign nation;
(C) a foreign official listed in section
1116(b)(3)(A), if the official is in the United
States on official business; or
(D) a Federal public servant who is a judge,
a law enforcement officer, or an employee of a
United States penal or correctional institution—
(i) while he or she is engaged in the
performance of his or her official duties;
(ii) because of the performance of his or
her official duties; or
(iii) because of his or her status as a
public servant.
135a
For purposes of this subparagraph, a “law enforcement officer” is a public servant authorized by law
or by a Government agency or Congress to conduct or
engage in the prevention, investigation, or prosecution
or adjudication of an offense, and includes those engaged in corrections, parole, or probation functions.
(15) Prior conviction of sexual assault or child
molestation.—In the case of an offense under chapter 109A (sexual abuse) or chapter 110 (sexual
abuse of children), the defendant has previously
been convicted of a crime of sexual assault or crime
of child molestation.
(16) Multiple killings or attempted killings.—
The defendant intentionally killed or attempted to
kill more than one person in a single criminal episode.
The jury, or if there is no jury, the court, may consider whether any other aggravating factor for which
notice has been given exists.
(d) Aggravating Factors for Drug Offense Death
Penalty.—In determining whether a sentence of death
is justified for an offense described in section 3591(b),
the jury, or if there is no jury, the court, shall consider
each of the following aggravating factors for which notice has been given and determine which, if any, exist:
(1) Previous conviction of offense for which a
sentence of death or life imprisonment was authorized.—The defendant has previously been convicted of another Federal or State offense resulting in
the death of a person, for which a sentence of life
imprisonment or death was authorized by statute.
(2) Previous conviction of other serious offenses.—The defendant has previously been convicted
136a
of two or more Federal or State offenses, each punishable by a term of imprisonment of more than one
year, committed on different occasions, involving
the importation, manufacture, or distribution of a
controlled substance (as defined in section 102 of
the Controlled Substances Act (21 U.S.C. 802)) or
the infliction of, or attempted infliction of, serious
bodily injury or death upon another person.
(3) Previous serious drug felony conviction.—
The defendant has previously been convicted of another Federal or State offense involving the manufacture, distribution, importation, or possession of a
controlled substance (as defined in section 102 of
the Controlled Substances Act (21 U.S.C. 802)) for
which a sentence of five or more years of imprisonment was authorized by statute.
(4) Use of firearm.—In committing the offense,
or in furtherance of a continuing criminal enterprise of which the offense was a part, the defendant
used a firearm or knowingly directed, advised, authorized, or assisted another to use a firearm to
threaten, intimidate, assault, or injure a person.
(5) Distribution to persons under 21.—The offense, or a continuing criminal enterprise of which
the offense was a part, involved conduct proscribed
by section 418 of the Controlled Substances Act (21
U.S.C. 859) which was committed directly by the
defendant.
(6) Distribution near schools.—The offense, or a
continuing criminal enterprise of which the offense
was a part, involved conduct proscribed by section
419 of the Controlled Substances Act (21 U.S.C.
860) which was committed directly by the defendant.
137a
(7) Using minors in trafficking.—The offense,
or a continuing criminal enterprise of which the offense was a part, involved conduct proscribed by
section 420 of the Controlled Substances Act (21
U.S.C. 861) which was committed directly by the
defendant.
(8) Lethal adulterant.—The offense involved the
importation, manufacture, or distribution of a controlled substance (as defined in section 102 of the
Controlled Substances Act (21 U.S.C. 802)), mixed
with a potentially lethal adulterant, and the defendant was aware of the presence of the adulterant.
The jury, or if there is no jury, the court, may consider whether any other aggravating factor for which
notice has been given exists.
138a
18 U.S.C. § 3593
§3593. Special hearing to determine whether a sentence of death is justified
(a) Notice by the Government.—If, in a case involving an offense described in section 3591, the attorney
for the government believes that the circumstances of
the offense are such that a sentence of death is justified
under this chapter, the attorney shall, a reasonable
time before the trial or before acceptance by the court
of a plea of guilty, sign and file with the court, and
serve on the defendant, a notice—
(1) stating that the government believes that
the circumstances of the offense are such that, if
the defendant is convicted, a sentence of death is
justified under this chapter and that the government will seek the sentence of death; and
(2) setting forth the aggravating factor or factors that the government, if the defendant is convicted, proposes to prove as justifying a sentence of
death.
The factors for which notice is provided under this
subsection may include factors concerning the effect of
the offense on the victim and the victim’s family, and
may include oral testimony, a victim impact statement
that identifies the victim of the offense and the extent
and scope of the injury and loss suffered by the victim
and the victim’s family, and any other relevant information. The court may permit the attorney for the
government to amend the notice upon a showing of
good cause.
(b) Hearing Before a Court or Jury.—If the attorney for the government has filed a notice as required
under subsection (a) and the defendant is found guilty
139a
of or pleads guilty to an offense described in section
3591, the judge who presided at the trial or before
whom the guilty plea was entered, or another judge if
that judge is unavailable, shall conduct a separate sentencing hearing to determine the punishment to be imposed. The hearing shall be conducted—
(1) before the jury that determined the defendant’s guilt;
(2) before a jury impaneled for the purpose of
the hearing if—
(A) the defendant was convicted upon a
plea of guilty;
(B) the defendant was convicted after a trial before the court sitting without a jury;
(C) the jury that determined the defendant’s guilt was discharged for good cause; or
(D) after initial imposition of a sentence
under this section, reconsideration of the sentence under this section is necessary; or
(3) before the court alone, upon the motion of
the defendant and with the approval of the attorney for the government.
A jury impaneled pursuant to paragraph (2) shall
consist of 12 members, unless, at any time before the
conclusion of the hearing, the parties stipulate, with the
approval of the court, that it shall consist of a lesser
number.
(c) Proof of Mitigating and Aggravating Factors.—
Notwithstanding rule 32 of the Federal Rules of Criminal Procedure, when a defendant is found guilty or
pleads guilty to an offense under section 3591, no
presentence report shall be prepared. At the sentenc-
140a
ing hearing, information may be presented as to any
matter relevant to the sentence, including any mitigating or aggravating factor permitted or required to be
considered under section 3592. Information presented
may include the trial transcript and exhibits if the hearing is held before a jury or judge not present during the
trial, or at the trial judge’s discretion. The defendant
may present any information relevant to a mitigating
factor. The government may present any information
relevant to an aggravating factor for which notice has
been provided under subsection (a). Information is admissible regardless of its admissibility under the rules
governing admission of evidence at criminal trials except that information may be excluded if its probative
value is outweighed by the danger of creating unfair
prejudice, confusing the issues, or misleading the jury.
For the purposes of the preceding sentence, the fact
that a victim, as defined in section 3510, attended or observed the trial shall not be construed to pose a danger
of creating unfair prejudice, confusing the issues, or
misleading the jury. The government and the defendant shall be permitted to rebut any information received at the hearing, and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any aggravating
or mitigating factor, and as to the appropriateness in
the case of imposing a sentence of death. The government shall open the argument. The defendant shall be
permitted to reply. The government shall then be
permitted to reply in rebuttal. The burden of establishing the existence of any aggravating factor is on the
government, and is not satisfied unless the existence of
such a factor is established beyond a reasonable doubt.
The burden of establishing the existence of any mitigating factor is on the defendant, and is not satisfied unless
141a
the existence of such a factor is established by a preponderance of the information.
(d) Return of Special Findings.—The jury, or if
there is no jury, the court, shall consider all the information received during the hearing. It shall return
special findings identifying any aggravating factor or
factors set forth in section 3592 found to exist and any
other aggravating factor for which notice has been provided under subsection (a) found to exist. A finding
with respect to a mitigating factor may be made by 1 or
more members of the jury, and any member of the jury
who finds the existence of a mitigating factor may consider such factor established for purposes of this section regardless of the number of jurors who concur that
the factor has been established. A finding with respect
to any aggravating factor must be unanimous. If no
aggravating factor set forth in section 3592 is found to
exist, the court shall impose a sentence other than
death authorized by law.
(e) Return of a Finding Concerning a Sentence of
Death.—If, in the case of—
(1) an offense described in section 3591(a)(1), an
aggravating factor required to be considered under
section 3592(b) is found to exist;
(2) an offense described in section 3591(a)(2), an
aggravating factor required to be considered under
section 3592(c) is found to exist; or
(3) an offense described in section 3591(b), an
aggravating factor required to be considered under
section 3592(d) is found to exist,
the jury, or if there is no jury, the court, shall consider whether all the aggravating factor or factors
found to exist sufficiently outweigh all the mitigating
142a
factor or factors found to exist to justify a sentence of
death, or, in the absence of a mitigating factor, whether
the aggravating factor or factors alone are sufficient to
justify a sentence of death. Based upon this consideration, the jury by unanimous vote, or if there is no jury,
the court, shall recommend whether the defendant
should be sentenced to death, to life imprisonment
without possibility of release or some other lesser sentence.
(f) Special Precaution To Ensure Against Discrimination.—In a hearing held before a jury, the court, prior to the return of a finding under subsection (e), shall
instruct the jury that, in considering whether a sentence of death is justified, it shall not consider the race,
color, religious beliefs, national origin, or sex of the defendant or of any victim and that the jury is not to recommend a sentence of death unless it has concluded
that it would recommend a sentence of death for the
crime in question no matter what the race, color, religious beliefs, national origin, or sex of the defendant or
of any victim may be. The jury, upon return of a finding under subsection (e), shall also return to the court a
certificate, signed by each juror, that consideration of
the race, color, religious beliefs, national origin, or sex
of the defendant or any victim was not involved in
reaching his or her individual decision and that the individual juror would have made the same recommendation regarding a sentence for the crime in question no
matter what the race, color, religious beliefs, national
origin, or sex of the defendant or any victim may be.